Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request. (b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number. (c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000. (d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000. (e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000. (f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000. (g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000. (h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000. (i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000. (j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000. (k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 3 contracts
Sources: Loan and Security Agreement (Global Defense Technology & Systems, Inc.), Loan and Security Agreement (Global Defense Technology & Systems, Inc.), Loan and Security Agreement (Global Defense Technology & Systems, Inc.)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Debtor shall execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 4.3(a) attached hereto, (iiiC) deposit accounts specially with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivSchedule 4.3(b) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 4.3(c) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Debtor authorizes the Administrative Agent to insure file one or more financing statements (with collateral descriptions broader, including without limitation “all assets” and/or “all personal property” collateral descriptions, and/or less specific than the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Debtor without such Debtor’s signature thereon, and further each Debtor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Debtor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign and/or file in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Debtor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary or appropriate in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Debtor hereby agrees that a photographic or other reproduction of this Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Debtor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the Law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Debtor or priority ofany part thereof, or ability to any of the Secured Obligations, such Debtor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent reasonably deems necessary to preserve, protect and enforce the security interests of the Administrative Agent granted hereunder under the Law of such other jurisdiction (and, if a Debtor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Debtor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Debtor’s agents and the Administrative Agent so requests, such Debtor agrees to notify such agents in writing of the Administrative Agent’s security interest in such Collateraltherein and, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, upon the Administrative Agent’s security interest in request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (4) obtaining governmental Secured Parties and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory subject to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionAgent’s instructions.
Appears in 3 contracts
Sources: Security Agreement (Quanta Services Inc), Security Agreement (Quanta Services Inc), Security Agreement (Quanta Services Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 8(d)(i)(B) attached hereto, (iiiC) deposit accounts specially with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivExhibit 8(d)(i)(C) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 8(d)(i)(D) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (with collateral descriptions broader, including without limitation “all assets” and/or “all personal property” collateral descriptions, and/or less specific than the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty of subject to the United States as Administrative Agent’s instructions. Each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 3 contracts
Sources: Security Agreement (NOODLES & Co), Security Agreement (NOODLES & Co), Security Agreement (NOODLES & Co)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights registered in the United States, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(d)(i) attached hereto, (iiiC) deposit accounts specially with regard to Patents registered in the United States, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivExhibit 5(d)(ii) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (with collateral descriptions broader, including without limitation “all assets” and/or “all personal property” collateral descriptions, and/or less specific than the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Agent’s security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, such Grantor without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such BorrowerGrantor’s signature thereon is required therefor(provided that no such description shall be deemed to modify the description of Collateral in Section 2), and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such financing statements (2) causing including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Agent’s name sole discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Domestic Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations, subject to any Collateral if compliance with such provision is a condition the Administrative Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 2 contracts
Sources: Domestic Security Agreement (GFI Group Inc.), Domestic Security Agreement (GFI Group Inc.)
Perfection of Security Interest. Subject to the limitations set forth herein and in the other Loan Documents, each Loan Party shall take all action that Agent (aacting at the direction of the Required Lenders) Each Borrower may request, to maintain the validity, perfection, enforceability and priority of Agent’s security interest in and Lien on the Collateral to the extent such perfection and priority are contemplated herein or under any other Loan Document, or to enable Agent to protect, exercise or enforce its rights hereunder, under the Code, and in the Collateral, including, but not limited to, executing and delivering Account Control Agreements, financing statements, instruments of pledge, proxies, powers of attorneys, amendments to organizational documents, and other documents as Agent (acting at the direction of the Required Lenders) may reasonably request, in each case in form and substance satisfactory to Agent (acting at the direction of the Required Lenders). By its signature hereto, each Loan Party hereby irrevocably authorizes Agent (without obligation) to file against such Loan Party, one or more financing statements, continuation statements or amendments to financing and/or continuation statements, or any similar document in any jurisdictions and with any filing offices as the Administrative AgentRequired Lenders may determine, for in their reasonable discretion, are necessary or advisable to perfect or otherwise protect the ratable benefit of security interest granted to Agent herein and hereby specifically ratifies all such actions previously taken by Agent or the Lenders, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial . Such financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to and/or documents shall be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to Agent (acting at the Administrative Agent, cause direction of the depositary bank to agree to comply at any time during the continuation Required Lenders) (which statements may have a description of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower collateral which is broader than that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinherein, including without limitation a description of Collateral as “all assets” and/or “all personal property”, whether now owned or hereafter acquired, of any Loan Party). Agent (ii) deposit accounts for which acting at the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds direction of the Borrower Required Lenders) is further authorized to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default file with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice or United States Copyright Office the Notice of Grant of Security Interest in Intellectual Property substantially in the form attached hereto as Exhibit E and such other documents as may be reasonably necessary or advisable for the purpose of perfecting, as applicableconfirming, that Borrower shall promptly notify continuing, enforcing or protecting the Administrative Agent thereofSecurity Interest granted by each Loan Party in such Loan Party’s United States Patents, United Stated Trademarks and if required by the Administrative Agent, shall execute and deliver United States Copyrights. Notwithstanding anything to the Administrative Agent an Intellectual Property Assignment with respect thereto and contrary herein, no Loan Party shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees required to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision laws of any statute, regulation or treaty of jurisdiction other than the United States as to (or any political subdivision thereof) and their territories and possessions for the purpose of perfecting the Agent’s Lien in any Collateral if compliance with of such provision is a condition to attachmentLoan Party constituting Patents, perfection Trademarks or priority ofCopyrights or any other assets. Notwithstanding anything else herein, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held shall not be liable for the ratable benefit of the Lenderspreparation, (4) obtaining governmental and other third party consents and approvalsfiling, including without limitation any consent recording, registration or maintenance of any licensorfinancing statements or any instruments, lessor agreements or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictiondocuments.
Appears in 2 contracts
Sources: Loan, Guaranty and Security Agreement (Terawulf Inc.), Loan, Guaranty and Security Agreement (Terawulf Inc.)
Perfection of Security Interest. (a) Each Borrower Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements and (including continuation statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifydeem necessary or appropriate in order to perfect and maintain the security interests granted on the Collateral hereunder except with respect to perfection only, provided for Collateral that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply is subject to promissory notes a Permitted Lien under subsections (xi) and tangible chattel paper with an aggregate face value of not greater than $100,000.
(dxii) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event definition of Default has occurred, deposit accounts which Permitted Lien in accordance with the aggregate hold funds not in excess of $100,000.
(e) If a Borrower UCC. Each Obligor shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign also execute and deliver the same to the Administrative Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (i) to be held assure to the Administrative Agent its security interests hereunder are perfected in accordance with the UCC, including, without limitation, (A) any financing statement that describes the Collateral as Collateral for “all personal property” or “all assets” or in some other manner as the ratable benefit of the LendersAdministrative Agent deems necessary or advisable, accompanied by (B) such financing statements (including continuation statements) or amendments thereof or supplements thereto or other instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any securities now other personal property security legislation in the appropriate state(s) or hereafter acquired by a Borrower are uncertificated province(s), (C) with regard to Investment Property, execute and are issued cause any Securities Intermediary with respect to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant Investment Property to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to execute a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions , (D) with regard to registered Material Copyrights, a Notice of this paragraph shall not apply, if no Default or Event Grant of Default has occurred, to commercial tort claims with an aggregate value not Security Interest in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered Copyrights for filing with the Register United States Copyright Office in the form of Copyrights or Schedule 5(f)(i) attached hereto, (E) with regard to Material Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (F) with regard to Material Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, each Obligor hereby irrevocably makes, constitutes and if required by appoints the Administrative Agent, its nominee or any other person whom the Administrative Agent may designate, as such Obligor’s attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such notices or similar documents which in the Administrative Agent’s reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the security interests granted hereunder other than, with respect to perfection only, in Vehicles and Collateral that is subject to a Permitted Lien under subsections (xi) and (xii) of the definition of Permitted Lien, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder, under any other Credit Document or any Secured Hedging Agreement shall remain outstanding (other than contingent indemnity obligations which by the terms thereof are stated to survive termination of the Credit Documents, and until all of the Commitments thereunder shall have terminated. In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent an Intellectual Property Assignment with respect thereto reasonably deems necessary or appropriate to preserve, protect and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by enforce the Administrative Agent to insure the attachment, perfection and first priority of, and the ability security interests of the Administrative Agent under the law of such other jurisdiction other than, with respect to enforceperfection only, in Vehicles and Collateral that is subject to a Permitted Lien under subsections (xi) and (xii) of the definition of Permitted Lien (and, if an Obligor shall fail to do so promptly upon the request of the Administrative Agent’s security interest in , then the Administrative Agent may execute any and all such requested documents on behalf of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, such Obligor pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing power of attorney granted hereinabove). Each Obligor agrees to ▇▇▇▇ its books and records to reflect the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 2 contracts
Sources: Security Agreement (Red Robin Gourmet Burgers Inc), Security Agreement (Red Robin Gourmet Burgers Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments (bincluding affidavits, notices, reaffirmations and amendments and restatements of existing documents) Without providing at least 10 days’ prior written notice and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (i) to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Exhibit 5(d)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(ii) attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent of its rights and interests hereunder. To that if no Default end, each Grantor authorizes the Administrative Agent to file one or Event more financing statements (with collateral descriptions broader, including without limitation “all assets” and/or “all personal property” collateral descriptions, and/or less specific than the description of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(dthe Collateral contained herein) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at disclosing the Administrative Agent’s requestsecurity interest in any or all of the Collateral of such Grantor without such Grantor’s signature thereon, pursuant to an agreement in form and substance reasonably satisfactory to further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, cause the depositary bank to agree to comply at its nominee or any time during the continuation of an Event of Default with instructions from other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give Grantor any such instructions financing statements (including renewal statements), amendments and supplements, notices or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which similar documents that in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request thereforreasonable discretion would be necessary, forthwith endorseappropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, assign such power, being coupled with an interest, being and deliver remaining irrevocable so long as the same to Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as Grantor wherever the Administrative Agent may from time in its sole discretion desire to time specifyfile the same. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by In the issuer thereof, event that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing and for any reason the Law of any jurisdiction other than New York becomes or would occur after taking into account any action by such Borrower with respect is applicable to the bailee. The provisions Collateral of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper Grantor or any “transferable record,” as that term is defined in Section 201 part thereof, or to any of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdictionSecured Obligations, such Borrower shall promptly notify Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent thereof in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the Law of such other jurisdiction (and, at if a Grantor shall fail to do so promptly upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request execute any and all such requested documents on behalf of such Grantor pursuant to vest the power of attorney granted hereinabove). If any Collateral is in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper possession or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agenta Grantor’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement agents and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not applyso requests, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further Grantor agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability notify such agents in writing of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering therein and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing upon the Administrative Agent’s name request, instruct them to be noted as hold all such Collateral for the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability account of the Administrative Agent Secured Parties, subject to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictioninstructions.
Appears in 2 contracts
Sources: Security Agreement (Louisiana-Pacific Corp), Security Agreement (Louisiana-Pacific Corp)
Perfection of Security Interest. (a) Each Borrower Except as set forth herein, each Loan Party shall take all action that may be necessary or desirable, or that Agent may request, so as at all times to maintain the validity, perfection, enforceability and priority of Agent’s Lien in the Collateral to the extent required by this Agreement or any Other Documents. Without limiting the generality of the foregoing, in the case of each item of Well Services Equipment consisting of titled motor vehicles, each Loan Party shall (i) promptly after acquiring such title, arrange for the notation of Agent’s first priority Lien thereon and, if requested by Agent, shall provide Agent with evidence reasonably satisfactory to Agent that such title has been submitted to the applicable state motor vehicle department (or equivalent state Governmental Body), and (ii) after such Loan Party shall have received such title noting Agent’s first priority Lien thereon, shall promptly deliver such title to Agent or, at Agent’s direction, to the Title Agent. Notwithstanding the foregoing, (A) Loan Parties shall not be required to deliver titles to Agent or Title Agent, or arrange for the notation of Agent’s first priority Lien on such titles, with respect to (1) light duty pickup trucks, passenger cars and smaller trailers except upon Agent’s request, which request may be made by Agent, in its sole discretion, at any time following the Closing Date, or (2) titled motor vehicles which are financed or subject to a Capital Lease or Permitted Fixed Asset Financing and are secured by Permitted Encumbrances set forth in subsection (f) of the definition of Permitted Encumbrances, and so long as the applicable agreements governing any Permitted Fixed Asset Financing permit the notation of Agent’s second priority Lien on the titled motor vehicles which are subject to such Permitted Fixed Asset Financing, then the Loan Parties shall arrange for the notation of Agent’s second priority Lien (and not a first priority Lien) on the titles to such motor vehicles, provided, that, Loan Parties shall be required to deliver titles to Agent or Title Agent and arrange for the notation of Agent’s first priority Lien thereon with respect to titled motor vehicles described in this clause (A)(2) promptly after the financing or Capital Lease with respect thereto has been paid and satisfied in full, other than as a result of a refinancing thereof permitted by Section 7.07(b), and (B) Agent’s Lien on any titled motor vehicles which are subject to a Permitted Fixed Asset Financing shall be subject to the senior and prior Lien thereon held by the Person who has provided the Permitted Fixed Asset Financing with respect to such titled motor vehicles. All titles for such Well Services Equipment consisting of titled motor vehicles (except as provided above) will be held in the possession of Agent or its bailee, for the benefit of Agent.
(b) Agent may, and each Loan Party hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the LendersAgent to, at any time and from time to time to file in any Uniform Commercial Code relevant jurisdiction any initial in accordance with Section 9-509 of the UCC, financing statements and amendments thereto that (1) indicate describe the Collateral (i) as “all assets of such Borrower assets” or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A language of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, applicable Loan Party and (2) which contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction UCC for the sufficiency or filing office acceptance of any financing statement statements, continuation statements or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relatesamendments. Each Borrower Loan Party agrees to furnish any such information to the Administrative Agent promptly upon request.
. Each Loan Party further irrevocably authorized Agent to file with the United States Patent and Trademark Office or United States Copyright Office (bor any successor office or any similar office in any other country) Without providing at least 10 days’ prior written notice such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Agent’s Lien granted by each Loan Party without the signature of any Loan Party, and naming any Loan Party or the Loan Parties as debtors and Agent as secured party. Agent’s Lien is granted as security only and shall not subject Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Loan Party with respect to or arising out of the Collateral. Notwithstanding anything to the Administrative Agentcontrary contained herein or in any Other Document, Agent shall have no Borrower shall change its nameresponsibility for the preparing, its type recording, filing, re-recording or re-filing of organization, jurisdiction of organization any financing statements (amendments or continuations) or other legal structure, its principal place of business or, if more than one, chief executive instruments in any public office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify for otherwise maintaining the Administrative Agent perfection of such organizational identification numberthe Agent’s Lien granted hereunder.
(c) If a Borrower shall Each Loan Party shall, at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifytime, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, take such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative steps as Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply may request to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the baileeacknowledgment, in form and substance reasonably satisfactory to the Administrative Agent, of any bailee having possession of any of the Collateral, stating that the bailee holds such Collateral for Agent, (ii) obtain “control” of any letter-of-credit rights, deposit accounts (other than Restricted Accounts) or electronic chattel paper (as such terms are defined in the UCC with corresponding provisions thereof defining what constitutes “control” for such items of Collateral), with any agreements establishing control to be in form and substance reasonably satisfactory to Agent, and (iii) otherwise ensure the continued perfection and priority of Agent’s Liens in any of the Collateral for the benefit of the Administrative Agent Secured Parties and of its rights therein. If any Loan Party shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any time, acquire a “transferable record,commercial tort claim” (as that such term is defined in Section 201 the UCC) in excess of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdictionFive Hundred Thousand ($500,000) Dollars, such Borrower Loan Party shall promptly notify the Administrative Agent thereof andin writing (which notice shall be deemed to be an update of Schedule 5.08(b)), at the request of the Administrative therein providing a reasonable description and summary thereof, and upon delivery thereof to Agent, such Loan Party shall take such action as the Administrative Agent may reasonably request be deemed to vest in the Administrative thereby have granted to Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global each Secured Party (and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant Loan Party hereby grants to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter each Secured Party) a Lien in and to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that each such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof claim and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the all proceeds thereof, all upon the terms of and governed by this Agreement, with such writing Agreement to be in form secure the prompt payment and substance satisfactory to performance of all of the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000Obligations.
(jd) If a Borrower at any time holds any Intellectual Property registered Each Loan Party hereby confirms and ratifies all UCC financing statements filed in favor of Agent with the Register of Copyrights respect to such Loan Party on or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver prior to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions date of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000the Agreement.
(ke) Each Borrower further agrees to take All charges, expenses and fees Agent may incur in doing any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative foregoing shall be paid by Loan Parties to Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionpromptly upon demand.
Appears in 2 contracts
Sources: Loan and Security Agreement (Forbes Energy Services Ltd.), Loan and Security Agreement (Forbes Energy Services Ltd.)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon and/or file such agreements, assignments or instruments (including affidavits, notices, reaffirmations, amendments and restatements of existing documents, and any document as may be necessary if the law of any jurisdiction other than New York becomes or is applicable to the Collateral or any portion thereof, in each case, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent its security interests hereunder are perfected, no Borrower shall change its name, its type of organization, jurisdiction of organization including (A) such financing statements (including continuation statements) or amendments thereof or supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any other personal property security legislation in the appropriate state(s) or province(s), provided that if no Default or Event (B) with regard to Copyrights and Copyright Licenses, a Notice of Default has occurredGrant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Exhibit A attached hereto, provisions (C) with regard to Patents and Patent Licenses, a Notice of this paragraph shall not apply Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit B attached hereto and (D) with regard to promissory notes Trademarks and tangible chattel paper Trademark Licenses, a Notice of Grant of Security Interest in Trademarks for filing with an aggregate face value the United States Patent and Trademark Office in the form of not greater than $100,000.
Exhibit C attached hereto, (dii) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent’s requestAgent of its rights and interests hereunder (and, pursuant if an Obligor shall fail to an agreement in form and substance reasonably satisfactory to do any of the foregoing promptly upon the request of the Administrative Agent, cause then the depositary bank Administrative Agent may execute and/or file any and all such requested documents on behalf of such Obligor pursuant to agree to comply at any time during the continuation power of an Event of Default with instructions from attorney granted herein). Each Obligor hereby authorizes the Administrative Agent to prepare and file such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions financing statements (including continuation statements) or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and amendments thereof or supplements thereto or other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now deem necessary or hereafter acquired by a Borrower are uncertificated appropriate in order to perfect and are issued to such Borrower or its nominee directly by maintain the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement security interests granted hereunder in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, accordance with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the LendersUCC, including, without limitation, (1) executing, delivering and, where appropriate, filing any financing statements and amendments relating thereto under statement that describes the Uniform Commercial Code, to Collateral as “all personal property” or “all assets” of such Obligor or that describes the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted Collateral in some other manner as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation deems necessary or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionadvisable.
Appears in 2 contracts
Sources: Security Agreement (Pantry Inc), Security Agreement (Pantry Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably Loan Party authorizes the Administrative Agent, for the ratable benefit of the Lenders, Agent to file at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements statements, continuation statements, and amendments thereto that (1i) indicate describe the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A Loan Party of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detailkind pledged hereunder, and (2ii) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or of filing office acceptance of any financing statement statement, continuation statement, or amendment, including (i) whether such Borrower Loan Party is an organization, the type of organization and any organization organizational identification number issued to such Borrower andLoan Party, if applicable. Any such financing statements may be filed by Agent at any time in any jurisdiction whether or not Revised Article 9 of the Code is then in effect in that jurisdiction. Each Loan Party shall from time to time endorse and deliver to Agent, at the request of Agent, all Negotiable Collateral and other documents that Agent may reasonably request, in form reasonably satisfactory to Agent, to perfect and continue perfection of Agent’s security interests (iifor the benefit of the Lenders) in the case Collateral and in order to fully consummate all of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relatestransactions contemplated under the Loan Documents. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower The Loan Parties shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part possession of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same except where expressly otherwise provided in this Agreement or where Agent chooses to perfect its security interest by possession in addition to the Administrative Agent, for the ratable benefit filing of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper a financing statement. Where Collateral with an aggregate face a value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of [**] Dollars ($100,000.
(e[**]) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed is in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a third party or bailee, each Borrower the applicable Loan Party shall promptly notify the Administrative take such steps as Agent thereof and, if requested by the Administrative Agent, shall promptly reasonably requests for Agent to obtain an acknowledgement from the baileeacknowledgment, in form and substance reasonably satisfactory to the Administrative Agent, of the bailee that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees Where Collateral with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book a value not in excess of [**] Dollars ($100,000.
(g[**]) If is located at a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term property which is defined in Section 201 of not owned by a Loan Party, the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, applicable Loan Party shall take such action steps as the Administrative Agent may reasonably request requests for Agent to vest obtain an agreement, in the Administrative form and substance reasonably satisfactory to Agent, for from the ratable benefit owner and/or mortgagee of such property that it agrees to, among other things, waive or subordinate any Lien it may have on the Collateral, and agrees to permit the Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the LendersCollateral. The applicable Loan Party shall cause Agent obtain “control” of any Collateral consisting of investment property, securities accounts or deposit accounts (other than Excluded Accounts) (as such items and the term “control, under §9-105 ” are defined in Revised Article 9 of the Uniform Commercial Code, of such electronic chattel paper ) by causing the securities intermediary or depositary institution or issuing bank to execute a control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 2 contracts
Sources: Loan and Security Agreement (Cue Health Inc.), Loan and Security Agreement (Cue Health Inc.)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit Upon each investment of the Lenders, at any time and from time to time to file funds in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral Accounts in Dollar Permitted Investments which consist of Uncertificated U.S. Government Securities, the Collateral Agent shall cause such Uncertificated U.S. Government Securities to be held by the Collateral Agent as Collateral under this Agreement.
(b) Upon each investment of funds in the Collateral Accounts in Dollar Permitted Investments other than Uncertificated U.S. Government Securities or securities which have been deposited with an Approved Depositary, the Collateral Agent shall (i) as all assets of cause the securities or other instruments evidencing such Borrower or words of similar effect, regardless of whether any particular asset comprised Dollar Permitted Investments (A) in the Collateral falls within case of instruments, to be issued in the scope of Article 9A name of the Uniform Commercial Code Collateral Agent or its nominee and (B) to be delivered to the Collateral Agent either in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, to be held by the State or such jurisdiction, or (ii) Collateral Agent as being of an equal or lesser scope or with greater detailCollateral under this Agreement, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber any Dollar Permitted Investment described in clause (c) of the definition thereof, (A) cause the securities underlying such obligation to be cut, a sufficient description of real property delivered to which the Collateral relates. Each Borrower agrees Agent either in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, to furnish any be held by the Collateral Agent as Collateral under this Agreement, and (B) notify the counterparty to such information obligation that such obligation is subject to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type Lien of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification numberthis Agreement.
(c) If a Borrower Upon each investment of funds in the Collateral Accounts in Dollar Permitted Investments which have been deposited with an Approved Depositary, the Collateral Agent shall at any time hold or acquire any promissory notes or tangible chattel paper as part cause the Approved Depositary to make appropriate entries to the account of the Collateral, Collateral Agent on the books of such Borrower shall forthwith endorse, assign and deliver Approved Depositary to reflect the same transfer of all securities which have been deposited with such Approved Depositary to the Administrative Agent, for Collateral Agent and to deliver to the ratable benefit Collateral Agent a written confirmation of the Lendersbook-entry transfer of such securities into such account, accompanied to be held by such instruments of transfer or assignment duly executed in blank the Collateral Agent as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of Collateral under this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000Agreement.
(d) For each deposit account that a Borrower at any time opens If required for the validity or maintainsperfection of the Security Interest herein, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory on or prior to the Administrative AgentClosing Date, cause the depositary bank to agree to comply at Company shall file in Bermuda any time during registration statements that are necessary in connection with the continuation execution and delivery of an Event this Agreement and the granting and perfection of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such BorrowerSecurity Interest hereunder. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower Company shall promptly notify the Administrative Collateral Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, filings made pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, this Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h2.05(d) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Collateral Agent an Intellectual Property Assignment with respect thereto and shall cause copies of such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, filings pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest notice provisions set forth in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionSection 8.05.
Appears in 2 contracts
Sources: Security Agreement (Aes China Generating Co LTD), Security Agreement (Aes China Generating Co LTD)
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents) indicate and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets to assure to the Agent the effectiveness and priority of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organizationfinancing statements (including renewal statements), the type of organization amendments and any organization identification number issued to supplements or such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to registered Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(f)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to registered Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Exhibit 5(f)(ii) attached hereto and (D) with regard to registered Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements (with collateral descriptions broader and/or less specific than the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other Person whom the Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without limitationnotice thereof to such Grantor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than the applicable jurisdiction as of the Closing Date becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Agent, filing financing statements then the Agent may execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extentpower of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Grantor agrees to be noted as the Lender on any certificate of title for a titled good if notify such notation is a condition to attachment, perfection or priority of, or ability agents in writing of the Administrative Agent to enforce, the Administrative Agent’s security interest in therein and, upon the Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 2 contracts
Sources: Credit Agreement (Greenway Medical Technologies Inc), Security Agreement (Greenway Medical Technologies Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes For the Administrative Agent, for purpose of perfecting the ratable benefit pledge of the Lenderssecurity interest granted by each of the Pledgors to the Operating Partnership and the Company pursuant to Section 1, at any time each Pledgor authorizes and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral directs (i) the Operating Partnership, acting in its capacity as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A issuer of the Uniform Commercial Code OP Units, to register the pledge of the State Pledgor OP Units on the books and records of the Operating Partnership or such jurisdictionto register the Operating Partnership as the registered owner (for UCC perfection purposes only) of the Pledgor OP Units on the appropriate books and records of the Operating Partnership, or and (ii) the Company, acting in its capacity as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A the issuer of the Uniform Commercial Code Common Shares, to register the pledge of the State Pledgor Common Shares on the books and records of the Company or such jurisdiction to register the Company as the registered owner (for UCC perfection purposes only) of the sufficiency or filing office acceptance Pledgor Common Shares on the appropriate books and records of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon requestCompany.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof andIn addition, at the request of the Administrative AgentOperating Partnership and/or the Company, shall take such action as each Pledgor will promptly join with the Administrative Agent may reasonably request Operating Partnership and/or the Company in executing financing statements, continuation statements, assignments, certificates and other documents with respect to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of Collateral pursuant to the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global Code and National Commerce Act or, otherwise as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent Operating Partnership or the Company to insure enable the attachment, perfection and first priority of, Operating Partnership and the ability of Company to perfect or from time to time to renew the Administrative Agent security interests granted hereby.
(c) Each Pledgor grants the Operating Partnership and the Company the right, at the Operating Partnership and the Company’s option, to enforcefile any or all such financing statements, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing continuation statements and amendments relating thereto under the Uniform Commercial Code, other documents pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or and otherwise, without such Pledgor’s signatures, and irrevocably appoints each of the Company and the Operating Partnership as such Pledgor’s attorneys-in-fact to execute any such statements and documents in the Operating Partnership’s and/or the Company’s name and to perform all other acts which the Operating Partnership and/or the Company deem appropriate to perfect and continue the security interests conferred by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionthis Agreement.
Appears in 2 contracts
Sources: Representation and Warranty Indemnification Agreement (Eola Property Trust), Representation and Warranty Indemnification Agreement (Eola Property Trust)
Perfection of Security Interest. (a) Each Borrower Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements (including renewal statements and in lieu statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifydeem necessary or appropriate in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and, provided that if no Default or Event subject to Permitted Liens, to ensure the priority of Default has occurred, provisions of this paragraph such security interests. Each Obligor shall not apply to promissory notes also execute and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory deliver to the Administrative AgentAgent such agreements, cause assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the depositary bank to agree to comply at any time during Agent may reasonably request) and do all such other things as the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions may reasonably deem necessary or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to appropriate (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same assure to the Administrative Agent its security interests hereunder are first priority (subject to be held as Collateral for the ratable benefit of the LendersPermitted Liens) and perfected, accompanied by including (A) such financing statements (including renewal statements) or amendments thereof or supplements thereto or other instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If reasonably request in order to perfect and maintain the security interests granted hereunder and to ensure the first priority (subject to Permitted Liens) thereof in accordance with the UCC and any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment personal property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time security legislation in the possession appropriate state(s) or province(s), (B) with regard to Copyrights, a Notice of a bailee, each Borrower shall promptly notify Grant of Security Interest in Copyrights for filing with the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, United States Copyright Office or in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit any similar office or agency of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper United States or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Actother country, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest substantially in the Administrative Agentform of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees filing with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default Office or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection similar office or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty agency of the United States or any other country, substantially in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office or in any similar office or agency of the United States or any other country, substantially in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that end, each Obligor hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other person whom the Agent may designate, as such Obligor's attorney-in-fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, in lieu statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of and the first priority (subject to Permitted Liens) of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remain outstanding or any Credit Document or Lender Hedging Agreement is in effect or any Letter of Credit shall remain outstanding and until all of the Commitments shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to enforcepreserve, protect and enforce the Administrative security interests of the Agent and the first priority thereof (subject to Permitted Liens) under the law of such other jurisdiction (and, if an Obligor shall fail to do so promptly upon the request of the Agent’s , then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). Each Obligor agrees to maintain adequate books and records (in written or electronic form) which reflect the security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental Agent in the Collateral and other third party consents the status of each Obligor's inventory and approvals, including without limitation any consent of any licensor, lessor equipment which is leased to an Obligor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory which is subject to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictiona Permitted Lien.
Appears in 2 contracts
Sources: Credit Agreement (Nationsrent Companies Inc), Security Agreement (Nationsrent Companies Inc)
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which authorizing the Collateral relates. Each Borrower agrees Agent to furnish any file such information to the Administrative Agent promptly upon request.
financing statements (b) Without providing at least 10 days’ prior written notice to the Administrative Agentincluding renewal statements), no Borrower shall change its name, its type of organization, jurisdiction of organization amendments and supplements or such other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Collateral Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to material Copyrights, executing and delivering a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(b)-1 attached hereto, (iiiC) deposit accounts specially with regard to material Patents, executing and exclusively used delivering a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Exhibit 5(b)-2 attached hereto and (D) with regard to material Trademarks, as applicableexecuting and delivering a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(b)-3 attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor authorizes the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Collateral Agent to insure file one or more financing statements (which may describe the attachment, perfection and first priority of, and collateral as “all assets” or “all personal property”) disclosing the ability of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Collateral Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, without limitationbeing coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. In the event for any reason the Law of any U.S. jurisdiction other than the State of New York becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Collateral Agent under the Law of such other U.S. jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Collateral Agent, filing financing statements then the Collateral Agent may execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate power of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionattorney granted hereinabove).
Appears in 2 contracts
Sources: Security Agreement (Armstrong World Industries Inc), Security Agreement (Armstrong World Industries Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(f)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (which may describe the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, collateral as “all assets” or “all personal property”) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to file in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Administrative Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 2 contracts
Sources: Security Agreement (Ict Group Inc), Security Agreement (Ict Group Inc)
Perfection of Security Interest. (aExcept as set forth in Section 3(e) Each Borrower hereby irrevocably authorizes and except to the Administrative Agentextent that security interests may be inconsistent with or prohibited by governmental permits and except to the extent a security interest can not be granted and perfected under applicable law, for the ratable benefit of the Lenders, at any time and from time to time to file each such Credit Party represents that this Agreement creates a valid security interest in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (subject only to Permitted Liens) securing payment and performance of the Secured Obligations and that all filings and other action reasonably necessary to perfect such security interest have been taken or shall be promptly taken upon the reasonable request of the Collateral Agent. Each such Credit Party agrees to execute and deliver to the Collateral Agent such further agreements and assignments or other instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Collateral Agent may reasonably request) and to do all such other things as the Collateral Agent may reasonably deem necessary (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interest hereunder, including (iA) whether such Borrower is an organizationfinancing statements (including renewal statements), the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed statements or amendments thereof or supplements thereto or other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes and tangible chattel paper maintain the security interest granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting Uniform Commercial Code as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which enacted in the aggregate hold funds not in excess State of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificatedNew York, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (jurisdiction as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediarybe applicable, and shall not withhold its consent any successor statute(s) thereto (the "Code"), (B) with regard to the exercise Copyrights, a Notice of any withdrawal or dealing rights by such Borrower, unless an Event Grant of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not Security Interest in excess of $100,000.
(f) If any goods are at any time Copyrights in the possession form of Schedule 3(g)(i), (C) with regard to Patents, a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, Notice of Grant of Security Interest in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral Patents for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees filing with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 3(g)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 3(g)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent and the Banks of their rights and interests hereunder. To that Borrower end, each such Credit Party agrees that (i) in the event any Credit Party shall refuse to provide additional financing statements upon the reasonable request of the Collateral Agent, or shall fail to respond promptly notify the Administrative Agent thereofto any such request, and if required by (ii) at any time after the Administrative Agent, shall execute occurrence and deliver to during the Administrative Agent continuance of an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforceDefault, the Administrative Agent’s Collateral Agent may file one or more financing statements disclosing its security interest in any and or all of the CollateralCollateral without such Credit Party's signature thereon, and further such Credit Party also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other person whom the Collateral Agent may designate, as such Credit Party's attorney in fact with full power to sign in the name of such Credit Party any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Collateral Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remain outstanding. Each such Credit Party hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without notice thereof to such Credit Party wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, each such Credit Party agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent reasonably deems necessary or appropriate to preserve, protect and enforce the security interest of the Collateral Agent under the law of such other jurisdiction (and, if any such Credit Party shall fail to do promptly upon the request of the Collateral Agent, then the Collateral Agent may execute any and all such requested documents on behalf of such Credit Party pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of any of such Credit Party's agents and the Collateral Agent reasonably requests, the Credit Party agrees to notify such agents in writing of the Collateral Agent's security interest therein and, at any time after the occurrence, and during the continuance, of an Event of Default, upon the Collateral Agent's request, instruct them to hold all such Collateral for the ratable benefit Collateral Agent's account and subject to the Collateral Agent's instructions. Each such Credit Party agrees, upon the reasonable request of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial CodeCollateral Agent, to ▇▇▇▇ its books and records to reflect the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability security interest of the Administrative Collateral Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 2 contracts
Sources: Security and Pledge Agreement (Anvil Holdings Inc), Security and Pledge Agreement (Cottontops Inc)
Perfection of Security Interest. (ai) Each Borrower hereby irrevocably authorizes Assignor’s correct legal name (including, without limitation, punctuation and spacing) indicated in the Administrative Agentpublic record of Assignor’s jurisdiction, mailing address, identity or corporate structure, residence or chief executive office, jurisdiction of organization, organizational identification number, and federal tax identification number, are as set forth on Schedule 1 attached hereto and by this reference made a part hereof, (ii) Assignor has been using or operating under said name, identity or corporate structure without change for the ratable benefit time period set forth on Schedule 1 attached hereto, and (iii) in order to perfect the pledge and security interests granted herein against Assignor, UCC Financing Statements must be filed with the Delaware Secretary of State (to the extent the same can be perfected by the filing of a financing statement). Assignor covenants and agrees that it shall not change any of the Lendersmatters addressed by clauses (i), (ii), or (iii) of this paragraph unless it has given Agent at least thirty (30) days prior written notice of any such change and executed at the request of Agent or authorized the execution by Agent or Agent’s counsel of such additional financing statements or other instruments to be filed in such jurisdictions as Agent may deem necessary or advisable in its sole discretion to prevent any filed financing statement from becoming misleading or losing its perfected status.
(b) Schedule 1 correctly sets forth all names and tradenames that Assignor has used within the last five years.
(c) Assignor shall, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral time, take such steps as Agent may reasonably request for Agent (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the baileeacknowledgment, in form and substance reasonably satisfactory to the Administrative Agent, of any bailee having possession of any of the Collateral, stating that the bailee holds possession of such Collateral for the benefit on behalf of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent (ii) to obtain “control” of such Borrowerany investment property, provided that such Borrower shall not be in violation of this requirement ifdeposit accounts, after such Borrower has exercised reasonably commercial effortssecurities accounts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing letter-of-credit rights, or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” (as that term is such terms are defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent UCC with corresponding provisions thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, defining what constitutes “control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, ” for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 oritems of collateral) in each case in which such items are included as Collateral, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in with any agreements establishing control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement be in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(iiii) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent otherwise to insure the attachment, continued perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit Collateral and of the Lenders, including, without limitation, preservation of its rights therein. If Assignor shall at any time acquire a “commercial tort claim” (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under as such term is defined in the Uniform Commercial Code, UCC with respect to the extentCollateral or any portion thereof), if anyAssignor shall promptly notify Agent thereof in writing, that such Borrower’s signature thereon is required thereforproviding a reasonable description and summary thereof, (2) causing the Administrative Agent’s name and shall execute a supplement to be noted as the Lender on any certificate of title for this Assignment in form and substance acceptable to Agent granting a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateralcommercial tort claim to Agent.
(d) Assignor hereby authorizes Agent, held for its counsel or its representative, at any time and from time to time, to file financing statements, amendments and continuations that describe or relate to the ratable benefit Collateral or any portion thereof in such jurisdictions as Agent may deem necessary or desirable in order to perfect the security interests granted by Assignor under this Assignment or any other Loan Document, and such financing statements may contain, among other items as Agent may deem advisable to include therein, the federal tax identification number and organizational number of Assignor. Agent shall upon request provide Assignor with copies of any and all such filings made by Agent.
(e) Assignor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Assignment without the prior written consent of Agent, subject to such Assignor’s rights under Section 9-509(d)(2) of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionUCC.
Appears in 2 contracts
Sources: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(f)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor authorizes the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Collateral Agent to insure file one or more financing statements (with collateral descriptions broader and/or less specific than the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Collateral Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Collateral Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without limitationnotice thereof to such Grantor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Collateral Agent, filing financing statements then the Collateral Agent may execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extentpower of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Collateral Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Grantor agrees to be noted as the Lender on any certificate of title for a titled good if notify such notation is a condition to attachment, perfection or priority of, or ability agents in writing of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in therein and, upon the Collateral Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any the Collateral if compliance with such provision is a condition Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Collateral Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 2 contracts
Sources: Security Agreement (School Specialty Inc), Security Agreement (School Specialty Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent shall reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(c)(i) attached hereto, (iiiC) deposit accounts specially with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivExhibit 5(c)(ii) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(c)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure the attachmentfile one or more financing statements (with broad collateral descriptions, perfection and first priority of, and the ability including without limitation “all assets” and/or “all personal property” or words of the Administrative Agent to enforce, similar import) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Obligations (other than inchoate indemnification obligations) remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty of subject to the United States as Administrative Agent’s instructions. Each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes The security interest granted to the Administrative Agent, Collateral Agent (for the ratable benefit of the Lenders, at any time and from time Senior Secured Parties) pursuant to time to file this Agreement in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral constitutes a valid first-priority lien in the Collateral subject, with respect to any proceeds, to the limitations set forth in Section 9-315 of the UCC. The security interest granted to the Collateral Agent (for the benefit of the Senior Secured Parties) pursuant to this Agreement in the Collateral will be perfected (i) as all assets with respect to any property that can solely be perfected by filing, to the extent Article 9 of such Borrower or words the UCC applies thereto, upon the filing of similar effect, regardless of whether any particular asset comprised UCC financing statements in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or filing offices identified on Exhibit C and (ii) as being of an equal or lesser scope or with greater detailrespect to any property that can be perfected by possession, upon the Collateral Agent receiving possession thereof, and (2) contain any other information required by part 5 of Article 9A of in each case such security interest will be, as to Collateral perfected under the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentUCC, including (i) whether such Borrower is an organization, the type of organization superior and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information prior to the Administrative Agent promptly upon requestrights of all third Persons now existing or hereafter arising whether by way of mortgage, Lien, security interests, encumbrance, assignment or otherwise, subject to Permitted Liens.
(b) Without providing at least 10 days’ prior written notice Except to the Administrative Agent, no Borrower shall change its name, its type extent possession of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent portions of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, Collateral is required for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, orperfection, after giving effect to the filings, registrations and giving of notice referred to in this section, all such action as is necessary has been taken (or will be taken prior to the date of the first Borrowing Notice) to establish and perfect the Collateral Agent’s rights in and to such Collateral to the extent the Collateral Agent’s security interest can be perfected by filing, including any withdrawal not otherwise permitted by recording, filing, registration, giving of notice or other similar action. Subject to the Loan Documentsrequirements contained in the UCC with respect to the filing of continuation statements, would occur. The provisions as of this paragraph shall not apply to (i) any deposit account for which a Borrowerthe date hereof, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrowerno filing, the depositary bank and the Administrative Agent for the specific purpose set forth thereinrecording, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to re-filing or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds re-recording other than funds those listed on Exhibit C is necessary to perfect and maintain the perfection of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same security interests granted to the Administrative Collateral Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(gSenior Secured Parties) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with extent the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in any can be perfected by filing, and all such filings have been made (or will be made prior to the date of the Collateral, for the ratable benefit first Borrowing Notice). All such Collateral that requires perfection of the Lenders, including, without limitation, Lien and security interest described above by possession has been (1or will be contemporaneously with the execution of this Agreement) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, delivered to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Collateral Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Pledge and Security Agreement (First United Ethanol LLC)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments (bincluding affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request in writing) Without providing at least 10 days’ prior written notice and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (i) to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request in writing in order to vest perfect and maintain the security interests granted hereunder in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of accordance with the Uniform Commercial Code, (B) with regard to registered Copyrights, a Notice of such electronic chattel paper or control under Section 201 Grant of Security Interest in Copyrights for filing with the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result United States Copyright Office in the Administrative Agent’s loss form of controlExhibit 5(c)(i)(B) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, filing with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement United States Patent and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and Trademark Office in the proceeds thereof, all upon the terms form of this Agreement, Exhibit 5(c)(i)(C) attached hereto and (D) with such writing regard to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(c)(i)(D) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder, and if required by and, in furtherance of the Administrative Agentforegoing, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
Grantor hereby (k1) Each Borrower further agrees to take any other action reasonably requested by authorizes the Administrative Agent to insure file one or more financing statements (including authorization to describe the attachment, perfection and first priority of, and the ability Collateral as “all assets” or words of the Administrative Agent to enforce, similar meaning) disclosing the Administrative Agent’s security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, such Grantor without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such BorrowerGrantor’s signature thereon is required thereforthereon, (2) causing irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any Lender shall have any Commitment under the Credit Agreement, and so long as any Loan or other Obligation under the Credit Agreement shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim has been asserted), and (3) agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Lender on any certificate of title for a titled good if such notation is a condition Administrative Agent in its sole discretion reasonably deems necessary or appropriate to attachmentpreserve, perfection or priority of, or ability protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the written request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents (other than contract manufacturers and other service providers in the ordinary course of business) and the Administrative Agent so requests in writing, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s reasonable request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty subject to the Administrative Agent’s instructions. Upon the request of the United States as Administrative Agent, each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Dermira, Inc.)
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of SCHEDULE 5(D)(I), (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of SCHEDULE 5(D)(II) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of SCHEDULE 5(D)(III) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document, any Letter of Credit or any Hedging Agreement shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Obligor agrees to ▇▇▇▇ its books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Authorize or execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organizationfinancing statements (including renewal statements), the type of organization amendments and any organization identification number issued to supplements or such Borrower and, (ii) in the case of a financing statement filed other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(g)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Exhibit 5(g)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(g)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor agrees that the Administrative Collateral Agent thereof, and if required by may file one or more financing statements (with collateral descriptions broader and/or less specific than the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Collateral Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Collateral Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without limitationnotice thereof to such Grantor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the Law of any jurisdiction other than the applicable jurisdiction as of the Closing Date becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to authorize or to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Collateral Agent under the Law of such other jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Collateral Agent, filing financing statements then the Collateral Agent may authorize or execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extentpower of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Collateral Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Grantor agrees to be noted as the Lender on any certificate of title for a titled good if notify such notation is a condition to attachment, perfection or priority of, or ability agents in writing of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in therein and, upon the Collateral Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any the Collateral if compliance with such provision is a condition Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Collateral Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.. CHAR1\887101v3
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default or Event of Default has occurred(B) with regard to Copyrights, provisions of this paragraph shall not apply to promissory notes Patents and tangible chattel paper with Trademarks, an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an intellectual property security agreement in substantially the form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (iExhibit 5(d) any deposit account attached hereto for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, filing with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement United States Copyright Office and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure the attachmentfile one or more financing statements (with collateral descriptions broader, perfection and first priority of, and the ability including without limitation “all assets” and/or “all assets of the Administrative Agent to enforcedebtor, whether now owned or existing or owned, acquired or arising hereafter” and/or “all personal property” collateral descriptions, and/or less specific than the description of the Collateral contained herein) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon. Each Grantor hereby ratifies and confirms each financing statement filed by Union Bank prior to the Closing Date and agrees that such financing statement shall be deemed to be maintained by Union Bank in its capacity as Administrative Agent under the Credit Agreement, this Security Agreement and the other Loan Documents. Each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid (other than contingent indemnification obligations that pursuant to the express terms of the Loan Documents survive termination of the Loan Documents, obligations arising under Cash Management Agreements that survive the termination of the Credit Agreement as to which cash collateral or other arrangements satisfactory to the applicable Cash Management Bank shall have been made and Letters of Credit as to which Cash Collateral or other arrangements satisfactory to Administrative Agent and L/C Issuer shall have been made) and until the commitments relating thereto shall have been terminated and the Facility Termination Date has occurred. Each Grantor hereby agrees that a carbon, photographic or other reproduction of any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than California becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral with a value in excess of $100,000, individually with one agent, or in excess of the Threshold Amount, in the aggregate for all agents, is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty of subject to the United States as Administrative Agent’s instructions. Each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Wageworks, Inc.)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default or Event of Default has occurred(B) with regard to Copyrights, provisions of this paragraph shall not apply to promissory notes Patents and tangible chattel paper with Trademarks, an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an intellectual property security agreement in substantially the form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (iExhibit 5(d) any deposit account attached hereto for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, filing with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement United States Copyright Office and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure the attachmentfile one or more financing statements (with collateral descriptions broader, perfection and first priority of, and the ability including without limitation “all assets” and/or “all assets of the Administrative Agent to enforcedebtor, whether now owned or existing or owned, acquired or arising hereafter” and/or “all personal property” collateral descriptions, and/or less specific than the description of the Collateral contained herein) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon. Each Grantor hereby ratifies and confirms each financing statement filed by Union Bank prior to the Closing Date and agrees that such financing statement shall be deemed to be maintained by Union Bank in its capacity as Administrative Agent under the Credit Agreement, this Security Agreement and the other Loan Documents. Each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid (other than contingent indemnification obligations that pursuant to the express terms of the Loan Documents survive termination of the Loan Documents, obligations arising under Cash Management Agreements that survive the termination of the Credit Agreement as to which cash collateral or other arrangements satisfactory to the applicable Cash Management Bank shall have been made and Letters of Credit as to which Cash Collateral or other arrangements satisfactory to Administrative Agent and L/C Issuer shall have been made) and until the commitments relating thereto shall have been terminated and the Facility Termination Date has occurred. Each Grantor hereby agrees that a carbon, photographic or other reproduction of any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than California becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral with a value in WEST\275619327.7 excess of $2,000,000, individually with one agent, or in excess of the $5,000,000, in the aggregate for all agents, is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty of subject to the United States as Administrative Agent’s instructions. Each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Wageworks, Inc.)
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default or Event (B) to the extent required by the Credit Agreement, entering into lockbox arrangements with the Collateral Agent with respect to its collection of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, Accounts pursuant to an agreement in form and substance documentation reasonably satisfactory to the Administrative Agent and Collateral Agent, cause (C) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the depositary bank United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (D) with regard to agree Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (E) with regard to comply at Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that end, each Grantor authorizes the Collateral Agent to file one or more financing statements (with collateral descriptions broader and/or less specific than the description of the Collateral contained herein, such as “all assets” or “all personal property”) disclosing the Collateral Agent’s security interest in any time or all of the Collateral of such Grantor, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose after the occurrence and during the continuation of an Event of Default with instructions from Default, subject to the Administrative Agent terms of the Intercreditor Agreement, to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such BorrowerGrantor any notices or any similar documents that in the Collateral Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the Commitments have been terminated. The Administrative Agent agrees with each Borrower that In the Administrative Agent shall not give event for any such instructions reason the law of any jurisdiction other than New York becomes or withhold is applicable to the Collateral of any withdrawal rights from such BorrowerGrantor or any part thereof, unless an Event of Default has occurred and is continuing, or, after giving effect or to any withdrawal not otherwise permitted by of the Loan DocumentsSecured Obligations, would occursuch Grantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (and, if a Grantor shall fail to do so promptly upon the reasonable request of the Collateral Agent, then the Collateral Agent may execute any and all such reasonably requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). The provisions If any Collateral is in the possession or control of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank Grantor’s agents and the Administrative Collateral Agent have entered into a cash collateral agreement specially negotiated among so reasonably requests, such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments Grantor agrees to or for the benefit of notify such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds agents in writing of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shallCollateral Agent’s security interest therein and, upon the Administrative Collateral Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s reasonable request, pursuant instruct them to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds hold all such Collateral for the benefit account of the Administrative Agent and shall act upon the instructions holders of the Administrative Secured Obligations and subject to the Collateral Agent, without ’s instructions. Each Grantor agrees to maintain its books and records to reflect the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights security interest of the Lenders will not be materially impaired thereby. The Administrative Collateral Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000Collateral.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the --------------------------------- Administrative Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent, for Agent may reasonably request) and do all such other things as the ratable benefit of the Lenders, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral Administrative Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information assure to the Administrative Agent promptly upon request.
its security interests hereunder, including (bA) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization such financing statements (including renewal statements) or amendments thereof or supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a ----------------- Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached ----------------- hereto and (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the ------------------- transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent of its rights and interests hereunder. To that if no Default end, each Obligor agrees that the Administrative Agent may file one or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at more financing statements disclosing the Administrative Agent’s request's security interest in any or all of the Collateral of such Obligor without, pursuant to an agreement in form the extent permitted by law, such Obligor's signature thereon, and substance reasonably satisfactory to further each Obligor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, cause the depositary bank to agree to comply at its nominee or any time during the continuation of an Event of Default with instructions from other person whom the Administrative Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such BorrowerObligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Administrative Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document, any Letter of Credit or any Hedging Agreement shall remain outstanding, and until all of the Commitments thereunder shall have terminated. The Administrative Agent Each Obligor hereby agrees with each Borrower that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent shall not give any without notice thereof to such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and Obligor wherever the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, may in its sole discretion desire to file the depositary bank and same. In the Administrative Agent event for any reason the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit law of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds any jurisdiction other than funds North Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securitiesSecured Obligations, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign Obligor agrees to execute and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time in its sole discretion reasonably deems necessary or appropriate to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated preserve, protect and are issued to such Borrower or its nominee directly by enforce the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, an Obligor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request execute any and all such requested documents on behalf of such Obligor pursuant to vest the power of attorney granted hereinabove). If any Collateral is in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper possession or control under Section 201 of the Federal Electronic Signatures in Global an Obligor's agents and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrangeso requests, pursuant such Obligor agrees to procedures satisfactory to the Administrative Agent and so long as notify such procedures will not result agents in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request writing of the Administrative Agent's security interest therein and, upon the Administrative Agent's request, instruct them to hold all such Borrower shall, pursuant to an agreement in form Collateral for the Lenders' account and substance reasonably satisfactory subject to the Administrative Agent, arrange for 's instructions. Each Obligor agrees to ▇▇▇▇ its books and records to reflect the issuer and any confirmer security interest of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(b)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(b)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(b)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, file one or more financing statements disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenderssuch Grantor any such amendments and supplements, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforce, do so promptly upon the request of the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of then the Administrative Agent to enforce, the Administrative Agent’s security interest in may execute any and all such Collateral, held for the ratable benefit requested documents on behalf of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory such Grantor pursuant to the Administrative Agent and (6) taking all actions required by any earlier versions power of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionattorney granted hereinabove).
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of Schedule 6(e)(i), (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 6(e)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 6(e)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations or any Letter of Credit remains unpaid and until the Commitments shall have been terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Agent's instructions. Each Obligor agrees to attachment, perfection or priority of, or ability of mark its books and records to reflect the Administrative Agent to enforce, the Administrative Agent’s security interest of t▇▇ ▇gent in such the Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary,
(i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organizationfinancing statements (including renewal statements), the type of organization amendments and any organization identification number issued to supplements or such Borrower and, (ii) in the case of a financing statement filed other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(f)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor agrees that the Administrative Collateral Agent thereof, and if required by may file one or more financing statements (with collateral descriptions broader and/or less specific than the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Collateral Agent’s 's security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor's signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor's attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents which in the Collateral Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without limitationnotice thereof to such Grantor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Collateral Agent, filing financing statements then the Collateral Agent may execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extentpower of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor's agents and the Collateral Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Grantor agrees to be noted as the Lender on any certificate of title for a titled good if notify such notation is a condition to attachment, perfection or priority of, or ability agents in writing of the Administrative Agent to enforce, the Administrative Collateral Agent’s 's security interest in therein and, upon the Collateral Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any the Collateral if compliance with such provision is a condition Agent's instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Collateral Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Amerigroup Corp)
Perfection of Security Interest. Execute and deliver to the Lender such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Lender may reasonably request) indicate and do all such other things as the Collateral Lender may reasonably deem necessary, appropriate or convenient (i) as all assets to assure to the Lender the effectiveness and priority of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent Lender may from time to time specify, provided that if no Default or Event reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and (B) entering into lockbox arrangements with the Lender with respect to its collection of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, Accounts pursuant to an agreement in form and substance documentation reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at Lender and in accordance with any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions applicable state or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinfederal law, (ii) deposit accounts for which to consummate the Administrative Agent is the depositary, transactions contemplated hereby and (iii) deposit accounts specially to otherwise protect and exclusively used for payrollassure the Lender of its rights and interests hereunder. To that end, payroll taxes the Grantor authorizes the Lender to file one or more financing statements (with collateral description broader and/or less specific than the description of the Collateral contained herein, such as "all assets" or "all personal property") disclosing the Lender's security interest in any or all of the Collateral of the Grantor without the Grantor's signature thereon, and further the Grantor also hereby irrevocably makes, constitutes and appoints the Lender, its nominee or any other employee wage Person whom the Lender may designate, as the Grantor's attorney-in-fact with full power and benefit payments to or for the benefit limited purpose to sign in the name of the Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Lender's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Lender without notice thereof to the Grantor wherever the Lender may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of the Grantor or any part thereof, or to any of the Secured Obligations, the Grantor agrees to execute and deliver all such instruments and to do all such other things as the Lender in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Lender under the law of such Borrower’s salaried employeesother jurisdiction (and, (iv) deposit accounts for which such Borrower is acting as an agent if the Grantor shall fail to distribute funds other than funds do so promptly upon the request of the Borrower Lender, then the Lender may execute any and all such requested documents on behalf of the Grantor pursuant to a third party, and (v) if no Default or Event the power of Default has occurred, deposit accounts which attorney granted hereinabove). If any Collateral is in the aggregate hold funds not possession or control of the Grantor's agents and the Lender so requests, the Grantor agrees to notify such agents in excess writing of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shallthe Lender's security interest therein and, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s Lender's request, pursuant instruct them to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds hold all such Collateral for the benefit account of the Administrative Agent and shall act upon the instructions holders of the Administrative Agent, without Secured Obligations and subject to the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses Lender's instructions. Each Grantor agrees to provide such acknowledgement maintain its books and records to reflect the Administrative Agent determines that the rights security interest of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest Lender in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000Collateral.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to ------------------------------- the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effectto assure to the Agent its security interests hereunder, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdictionincluding, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower andbut not limited to, (iiA) in the case of a such financing statement filed as a fixture filing statements (including renewal statements) or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in such Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(g)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used for payrollwith regard to Patents, payroll taxes and other employee wage and benefit payments to or for the benefit a ---------------- Notice of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds Grant of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect Security Interest in such jurisdiction, of such transferable record. The Administrative Agent agrees Patents for filing with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify Office in the Administrative Agent thereofform of Schedule -------- 5(g)(ii) attached hereto, and if required by the Administrative Agent(D) with regard to Trademarks, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded a Notice -------- of Grant of Security Interest in such officeTrademarks for filing with the United States Patent and Trademark Office in the form of Schedule -------- 5(g)(iii) attached hereto, (ii) to consummate the transactions --------- contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. The provisions of this paragraph shall not applyTo that end, if no Default each Obligor agrees that the Agent may file one or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by more financing statements disclosing the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon; provided that the Agent will provide a notice to the appropriate Obligor of any of the foregoing within 10 days of the execution, delivery and filing, if any, that thereof and will promptly thereafter provide copies of any of the foregoing executed and delivered by the Agent, including, if received by the Agent, acknowledgment copies of any financing statements as filed. Furthermore, each Obligor hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other Person whom the Agent may designate, as such Borrower’s signature thereon Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the security interests granted hereunder. The power of attorney granted hereunder is required therefor, (2) causing the Administrative Agent’s name to be noted coupled with an interest and is and shall remain irrevocable so long as the Lender on Credit Agreement is in effect (other than any certificate obligations with respect to the indemnities and the representations and warranties set forth in any Credit Document which by their terms survive the termination of title for a titled good if such notation is a condition to attachmentCredit Document) or any amounts payable thereunder, perfection under any other Credit Document or priority ofHedging Agreement, or ability under any Letter of Credit shall remain outstanding, and until all of the Administrative Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to enforcesuch Obligor wherever the Agent may in its sole discretion desire to file the same; provided that the Agent will provide notice to the appropriate Obligor of any of the foregoing within 10 days of the execution, delivery and filing, if any, thereof and will promptly thereafter provide copies of any of the Administrative foregoing executed and delivered by the Agent’s , including, if received by the Agent, acknowledgment copies of any financing statements as filed. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if an Obligor shall fail to do so promptly upon the request of the Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Agent's security interest in therein and, upon the occurrence and continuance of an Event of Default, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Obligor agrees to ▇▇▇▇ its books and records to reflect the security interest of the Lenders, (3) complying with Agent in the Collateral The Obligors agree to deliver to the Agent any provision of any statute, regulation or treaty certificates representing Capital Stock pledged to the Agent on behalf of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory Lenders pursuant to the Administrative Agent and (6) taking all actions required by any earlier versions terms of the Uniform Commercial Code or by other lawthis Security Agreement, as applicable together with appropriate transfer powers executed in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionblank.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower Such Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements (including renewal statements and in lieu statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifydeem necessary or appropriate to perfect and maintain the security interests granted hereunder in accordance with the UCC and, provided subject to Permitted Liens, to ensure the first priority of such security interests. Any financing statement filed by the Agent may contain a general description of the collateral covered thereby, as permitted by the UCC, which states that if no Default the security interest attaches to all personal property or Event to all assets of Default has occurred, provisions of this paragraph the debtor. Such Obligor shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted upon request by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall also execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto such agreements, assignments or instruments (including affidavits, notices, reaffirmations and shall cause amendments and restatements of existing documents, as the Agent may reasonably request) and do all such Intellectual Property Assignment other things as the Agent may reasonably deem necessary or appropriate (i) to be recorded in such office. The provisions of this paragraph shall not applyassure the Agent that its security interests hereunder are perfected and, if no Default or Event of Default has occurredsubject to Permitted Liens, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lendersfirst priority, including, without limitation, (1A) executing, delivering and, where appropriate, filing such financing statements (including renewal statements and in lieu statements) or amendments relating thereof or supplements thereto under or other instruments as the Uniform Commercial CodeAgent may from time to time reasonably request in order to perfect and maintain the security interests granted hereunder and to ensure the first priority (subject to Permitted Liens) thereof in accordance with the UCC, (B) with regard to any material Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to any material Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to any material Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. Each Obligor hereby irrevocably authorizes and appoints the Agent as such Obligor's attorney-in-fact, at such Obligor's cost and expense, to the extentfile, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on record and register any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability and all of the Administrative Agent to enforce, the Administrative Agent’s Lenders' security interest in such Collateral, held for the ratable benefit any material Intellectual Property of the Lenders, (3) complying Obligors with any provision of any statute, regulation or treaty of the United States as Patent and Trademark Office or the United States Copyright Office. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Secured Obligations, such Obligor agrees from time to time upon request of the Agent to enforceexecute and deliver all such instruments and to do all such other things as the Agent in its reasonable discretion deems necessary or appropriate to preserve, protect and enforce the Administrative security interests of the Agent and the first priority thereof (subject to Permitted Liens) under the law of such other jurisdiction (and, if such Obligor shall fail to do so promptly upon the request of the Agent’s , then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). Such Obligor agrees to ▇▇▇▇ its books and records to reflect the security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Agent in the Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(f)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure the attachment, perfection and first priority of, and the ability file one or more financing statements (with collateral descriptions of the Administrative Agent to enforce, “all personal property” or “all assets” or words of similar meaning) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than North Carolina becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Administrative Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower Such Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements (including renewal statements and in lieu statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifydeem necessary or appropriate to perfect and maintain the security interests granted hereunder in accordance with the UCC and, provided subject to Permitted Liens, to ensure the first priority of such security interests. Any financing statement filed by the Agent may contain a general description of the collateral covered thereby, as permitted by the UCC, which states that if no Default the security interest attaches to all personal property or Event to all assets of Default has occurred, provisions of this paragraph the debtor. Such Obligor shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted upon request by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall also execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto such agreements, assignments or instruments (including affidavits, notices, reaffirmations and shall cause amendments and restatements of existing documents, as the Agent may reasonably request) and do all such Intellectual Property Assignment other things as the Agent may reasonably deem necessary or appropriate (i) to be recorded in such office. The provisions of this paragraph shall not applyassure the Agent that its security interests hereunder are perfected and, if no Default or Event of Default has occurredsubject to Permitted Liens, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lendersfirst priority, including, without limitation, (1A) executing, delivering and, where appropriate, filing such financing statements (including renewal statements and in lieu statements) or amendments relating thereof or supplements thereto under or other instruments as the Uniform Commercial CodeAgent may from time to time reasonably request in order to perfect and maintain the security interests granted hereunder and to ensure the first priority (subject to Permitted Liens) thereof in accordance with the UCC, (B) with regard to any Pledged Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to any Pledged Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to any Pledged Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. Each Obligor hereby irrevocably authorizes and appoints the Agent as such Obligor’s attorney-in-fact, at such Obligor’s cost and expense, to the extentfile, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on record and register any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability and all of the Administrative Agent to enforce, the Administrative Agent’s Lenders’ security interest in such Collateral, held for the ratable benefit Pledged Intellectual Property of the Lenders, (3) complying Obligors with any provision of any statute, regulation or treaty of the United States as Patent and Trademark Office or the United States Copyright Office. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Secured Obligations, such Obligor agrees from time to time upon request of the Agent to enforceexecute and deliver all such instruments and to do all such other things as the Agent in its reasonable discretion deems necessary or appropriate to preserve, protect and enforce the Administrative security interests of the Agent and the first priority thereof (subject to Permitted Liens) under the law of such other jurisdiction (and, if such Obligor shall fail to do so promptly upon the request of the Agent’s , then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). Such Obligor agrees to ▇▇▇▇ its books and records to reflect the security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Agent in the Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Senior Secured Working Capital Credit Facility (Transmontaigne Inc)
Perfection of Security Interest. (a) Each Borrower Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements and (including renewal statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifydeem reasonably necessary or appropriate in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided which financing statements may be without the signature of such Obligor (to the extent such signature is not required under the laws of any applicable jurisdiction), and which may describe the Collateral as "all assets" or "all personal property" or words of like import. Each Obligor shall also execute and deliver to the Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Agent may reasonably request) and do all such other things as the Agent may reasonably deem necessary or appropriate (i) to assure to the Agent its security interests hereunder, including (A) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the form of Schedule 6(f)(i) attached hereto, (B) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 6(f)(ii) attached hereto, (C) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 6(f)(iii) attached hereto and (D) with regard to Deposit Accounts, Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper, all agreements, assignments, instruments or other documents as requested by the Agent for the purpose of obtaining and maintaining Control, including any deposit account control agreements, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that if no Default end, each Obligor hereby irrevocably makes, constitutes and appoints the Agent, its nominee or Event any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of Default has occurredsuch Obligor any such notices or similar documents which in the Agent's reasonable discretion would be necessary, provisions appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable for so long as this Agreement is in effect and until this Agreement is terminated in accordance with Section 13(a) hereof. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this paragraph Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if an Obligor shall not apply fail to promissory notes do so promptly upon the request of the Agent, then the Agent may execute any and tangible chattel paper with an aggregate face all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). If any Collateral having a value of not greater than $100,000.
(d) For each deposit account that 100,000 or more is in the possession or control of a Borrower at warehouseman, bailee or any time opens agent or maintainsprocessor of an Obligor and the Agent so requests, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent Obligor agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, notify such agents in writing of the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth Agent's security interest therein, (ii) deposit accounts instruct them to hold all such Collateral for which the Administrative Agent is Lenders' account and subject to the depositary, Agent's instructions and (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement acknowledgment from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, such Person that the bailee holds it is holding such Collateral for the benefit of the Administrative Agent Agent. Each Obligor agrees to mark its books and shall act upon records to reflect the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇security interes▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(c)(i)(B), (iiiC) deposit accounts specially with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivExhibit 5(c)(i)(C) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(c)(i)(D), that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder, and if required by and, in furtherance of the Administrative Agentforegoing, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
Grantor hereby (k1) Each Borrower further agrees to take any other action reasonably requested by authorizes the Administrative Agent to insure the attachmentfile one or more financing statements (with collateral descriptions broader, perfection and first priority of, and the ability of the Administrative Agent to enforce, including “all assets” and/or “all personal property” collateral descriptions) disclosing the Administrative Agent’s security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, such Grantor without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such BorrowerGrantor’s signature thereon is required thereforthereon, (2) causing irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any Lender shall have any Commitment under the Credit Agreement, and so long as any Loan or other Obligation under the Credit Agreement shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim has been asserted), and (3) agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Lender on any certificate of title for a titled good if such notation is a condition Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to attachmentpreserve, perfection or priority of, or ability protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s reasonable request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty subject to the Administrative Agent’s instructions. Upon the request of the United States as Administrative Agent, each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower The Issuer hereby irrevocably authorizes the Administrative Agentrepresents and warrants, for the ratable benefit as of the Lendersclosing date, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral that:
(i) this Agreement creates a valid and continuing security interest (as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised defined in the Collateral falls within applicable UCC) in the scope of Article 9A Receivables in favor of the Uniform Commercial Code Indenture Trustee on behalf of the State or Holders of the Notes including the Series 2001-2 Noteholders, which security interest is prior to all other liens, and is enforceable as such jurisdiction, or as against creditors of and purchasers from the Issuer;
(ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A the Receivables constitutes "accounts" within the meaning of the Uniform Commercial Code applicable UCC;
(iii) the Issuer owns and has good and marketable title to the Receivables free and clear of any lien, claim or encumbrance of any Person;
(iv) the Issuer has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Receivables granted to the Indenture Trustee on behalf of the State Holders of the Notes including the Series 2001-2 Noteholders hereunder;
(v) other than the security interest granted to the Indenture Trustee, pursuant to this Agreement, the Issuer has not pledged, assigned, sold, granted a security 32 36 interest in, or such jurisdiction for otherwise conveyed any of the sufficiency or Receivables. The Issuer has not authorized the filing office acceptance of and is not aware of any financing statement or amendment, including (i) whether such Borrower is an organization, statements against the type Issuer that include a description of organization and collateral covering the Receivables other than any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information relating to the Administrative Agent promptly upon requestsecurity interest granted to the Indenture Trustee hereunder or that has been terminated. The Issuer is not aware of any judgment or tax lien filings against the Issuer.
(b) Without providing at least 10 days’ The Indenture Trustee may not waive a breach of any of the foregoing representations unless prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if such waiver (1) it has one. If a Borrower does not have an organizational identification number notified Standard & Poor's Rating Service ("S&P") of its intention to waive such breach and later obtains one, such Borrower shall forthwith notify S&P has informed the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority ofIndenture Trustee, and the ability Indenture Trustee has informed the Series 2001-2 Noteholders, as to whether such waiver will result in a downgrade of the Administrative Agent to enforce, the Administrative Agent’s security interest in any Series 2001-2 Notes and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as Indenture Trustee has subsequently received the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability unanimous consent of the Administrative Agent Series 2001-2 Noteholders to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionwaiver.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes Execute, acknowledge, deliver, record, re-record, file, re-file, register, re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative AgentAgent may reasonably require, for the ratable benefit of the Lendersdeem necessary, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information assure to the Administrative Agent promptly upon request.
the effectiveness and priority of its security interests hereunder, including (bA) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default reasonably request in order to perfect and maintain the security interests granted hereunder or Event under any of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper the Collateral Documents in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(c)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(c)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(c)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby (iii) correct any material defect or error that Borrower shall promptly notify may be discovered in this Security Agreement or any of the Collateral Documents or in the execution, acknowledgment, filing or recordation thereof and (iv) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (which may describe the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, collateral as “all assets” or “all personal property”) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Administrative Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability m▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent in the Collateral. Each Borrower Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements and (including continuation statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifydeem necessary or appropriate in order to perfect and maintain the security interests granted hereunder in accordance with the UCC. To the extent permitted by applicable law, provided each Obligor hereby agrees that if no Default a carbon, photographic or Event of Default has occurred, provisions other reproduction of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that Security Agreement or any such financing statement is sufficient for filing as a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from financing statement by the Administrative Agent without notice thereof to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that Obligor wherever the Administrative Agent may reasonably determine is appropriate. Each Obligor shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign also execute and deliver the same to the Administrative Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (i) to be held as Collateral for assure to the ratable benefit of the LendersAdministrative Agent its security interests hereunder are perfected, accompanied by including (A) such financing statements (including continuation statements) or amendments thereof or supplements thereto or other instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any securities now other personal property security legislation in the appropriate state(s) or hereafter acquired by province(s), (B) with regard to Copyrights, a Borrower are uncertificated Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and are issued Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to such Borrower or its nominee directly by Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the issuer thereofUnited States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, that Borrower shall immediately notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereof andof its rights and interests hereunder. To that end, at the Administrative Agent’s request each Obligor hereby irrevocably makes, constitutes and option, pursuant to an agreement in form and substance reasonably satisfactory to appoints the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from its nominee or any other person whom the Administrative Agent may designate, as such Obligor's attorney-in-fact with full power and for the limited purpose to such securities, without further consent sign in the name of such Borrower Obligor any notices or any similar documents which in the Administrative Agent's reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the security interests granted hereunder, such nomineepower, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remain outstanding (other than any such obligations which by the terms thereof are stated to survive termination of the Credit Documents) or any Credit Document or Hedging Agreement (to the extent the obligations of such Obligor thereunder constitute Secured Obligations) is in effect, and until all of the Commitments shall have terminated. If In the event for any securities, whether certificated reason the law of any jurisdiction other than New York becomes or uncertificatedis applicable to the Collateral of any Obligor or any part thereof, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediaryto any of the Secured Obligations, such Borrower shall immediately notify Obligor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent thereof andin its reasonable discretion reasonably deems necessary or appropriate to preserve, at protect and enforce the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, an Obligor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all such requested documents on behalf of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, such Obligor pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate power of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionattorney granted hereinabove).
Appears in 1 contract
Sources: Security Agreement (Pantry Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization including (A) such financing statements (including renewal statements) or amendments thereof or supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent of its rights and interests hereunder. To that if no Default end, each Obligor agrees that the Administrative Agent may file one or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at more financing statements disclosing the Administrative Agent’s request's security interest in any or all of the Collateral of such Obligor without, pursuant to an agreement in form the extent permitted by law, such Obligor's signature thereon, and substance reasonably satisfactory to further each Obligor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, cause the depositary bank to agree to comply at its nominee or any time during the continuation of an Event of Default with instructions from other person whom the Administrative Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such BorrowerObligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Administrative Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document, any Letter of Credit or any Hedging Agreement shall remain outstanding, and until all of the Commitments thereunder shall have terminated. The Administrative Agent Each Obligor hereby agrees with each Borrower that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent shall not give any without notice thereof to such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and Obligor wherever the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, may in its sole discretion desire to file the depositary bank and same. In the Administrative Agent event for any reason the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit law of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds any jurisdiction other than funds North Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securitiesSecured Obligations, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign Obligor agrees to execute and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time in its sole discretion reasonably deems necessary or appropriate to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated preserve, protect and are issued to such Borrower or its nominee directly by enforce the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, an Obligor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request execute any and all such requested documents on behalf of such Obligor pursuant to vest the power of attorney granted hereinabove). If any Collateral is in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper possession or control under Section 201 of the Federal Electronic Signatures in Global an Obligor's agents and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrangeso requests, pursuant such Obligor agrees to procedures satisfactory to the Administrative Agent and so long as notify such procedures will not result agents in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request writing of the Administrative Agent's security interest therein and, upon the Administrative Agent's request, instruct them to hold all such Borrower shall, pursuant to an agreement in form Collateral for the Lenders' account and substance reasonably satisfactory subject to the Administrative Agent, arrange for 's instructions. Each Obligor agrees to mark ▇▇▇ books and records to reflect the issuer and any confirmer security interest of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Sleepmaster LLC)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Such Grantor shall execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments (bincluding affidavits, notices, reaffirmations and amendments and restatements of existing documents) Without providing at least 10 days’ prior written notice and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (i) to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its nameincluding (A) such financing statements (including renewal statements), its type of organization, jurisdiction of organization amendments and supplements or such other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default or Event (B) with regard to Copyrights, a Notice of Default has occurredGrant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Exhibit 5(f)(i) attached hereto, provisions (C) with regard to Patents, a Notice of this paragraph shall not apply Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit 5(f)(ii) attached hereto and (D) with regard to promissory notes Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and tangible chattel paper with an aggregate face value Trademark Office in the form of not greater than $100,000.
(dExhibit 5(f)(iii) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinattached hereto, (ii) deposit accounts for which to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent is of its rights and interests hereunder. In the depositary, (iii) deposit accounts specially and exclusively used event for payroll, payroll taxes and other employee wage and benefit payments to or for any reason the benefit law of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds any jurisdiction other than funds New York becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securitiesSecured Obligations, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign Grantor agrees to execute and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time in its sole discretion reasonably deems necessary, appropriate or convenient to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated preserve, protect and are issued to such Borrower or its nominee directly by enforce the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, a Grantor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request execute any and all such requested documents on behalf of such Grantor pursuant to vest the power of attorney granted hereinabove). If any Collateral is in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper possession or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agenta Grantor’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement agents and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not applyso requests, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further Grantor agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability notify such agents in writing of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering therein and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing upon the Administrative Agent’s name request, instruct them to be noted as hold all such Collateral for the Lender on any certificate account of title for a titled good if such notation is a condition the Secured Parties and subject to attachment, perfection or priority of, or ability the Administrative Agent’s instructions. Each Grantor agrees to ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes Execute and deliver to the Canadian Administrative AgentAgent such agreements, for assignments or instruments and do all such other things as the ratable benefit of the LendersCanadian Administrative Agent may reasonably deem necessary, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral appropriate or convenient (i) as all assets to assure to the Canadian Administrative Agent the effectiveness, perfection and priority of such Borrower or words of similar effect, regardless of whether any particular asset comprised its security interests in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmenthereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Canadian Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the PPSA, provided that if no Default or Event (B) with regard to Copyrights, a Notice of Default has occurredGrant of Security Interest in Copyrights for filing with the Canadian Intellectual Property Office in the form of Exhibit 5(d)(i) attached hereto, provisions (C) with regard to Patents, a Notice of this paragraph shall not apply Grant of Security Interest in Patents for filing with the Canadian Intellectual Property Office in the form of Exhibit 5 (d)(ii) attached hereto and (D) with regard to promissory notes Trademarks registered with the Canadian Intellectual Property Office and tangible chattel paper all applications for Trademarks filed with an aggregate face value the Canadian Intellectual Property Office, a Notice of not greater than $100,000.
(dGrant of Security Interest in Trademarks for filing with the Canadian Intellectual Property Office in the form of Exhibit 5(d)(iii) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinattached hereto, (ii) deposit accounts for which to consummate the Administrative Agent is the depositary, transactions contemplated hereby and (iii) deposit accounts specially to otherwise protect and exclusively used for payrollassure the Canadian Administrative Agent of its rights and interests hereunder. To that end, payroll taxes and other employee wage and benefit payments to or for each Grantor authorizes the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Canadian Administrative Agent to be held as Collateral for file one or more financing statements (with collateral descriptions broader, including without limitation “inventory”, “equipment”, “accounts”, “other” and/or “motor vehicle included” collateral descriptions) disclosing the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Canadian Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Canadian Security Agreement or any such financing statement is sufficient for filing as a financing statement by the ratable benefit Canadian Administrative Agent without notice thereof to such Grantor wherever the Canadian Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than Ontario becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the LendersSecured Obligations, includingsuch Grantor agrees to execute and deliver all such instruments and to do all such other things as the Canadian Administrative Agent in its sole discretion reasonably deems necessary, without limitationappropriate or convenient to preserve, protect and enforce the security interests of the Canadian Administrative Agent under the law of such other jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Canadian Administrative Agent, filing financing statements then the Canadian Administrative Agent may execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extentpower of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Canadian Administrative Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Grantor agrees to be noted as the Lender on any certificate of title for a titled good if notify such notation is a condition to attachment, perfection or priority of, or ability agents in writing of the Administrative Agent to enforce, the Canadian Administrative Agent’s security interest in such Collateraltherein and, held for upon the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Canadian Administrative Agent’s request, instruct them to hold all such Collateral for the account of the Secured Parties, subject to the Canadian Administrative Agent’s instructions. Each Grantor agrees to ▇▇▇▇ its books and records to reflect the security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Canadian Administrative Agent and (6) taking all actions required by any earlier versions of in the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionCollateral.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower M▇▇▇ its books and records to reflect the security interest of the Administrative Agent in the Collateral. The Debtor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements and (including renewal statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default deem necessary or Event of Default has occurred, provisions of this paragraph shall not apply appropriate in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such BorrowerUCC. The Administrative Agent agrees with each Borrower that the Administrative Agent Debtor shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign also execute and deliver the same to the Administrative Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request) and do all such other things requested by the Administrative Agent as the Administrative Agent may reasonably deem necessary or appropriate (i) to be held as Collateral for assure to the ratable benefit of the LendersAdministrative Agent that its security interests hereunder are perfected, accompanied by including (A) such financing statements (including renewal statements) or amendments thereof or supplements thereto or other instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment personal property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time security legislation in the possession of a baileeappropriate state(s) or province(s), each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory (B) with regard to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Copyrights registered with the Register United States Copyright Office, a Notice of Grant of Security Interest in Copyrights or for filing with the United States Copyright Office in the form of Schedule IX attached hereto, (C) with regard to Patents registered with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule X attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Office, that Borrower shall promptly notify a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule XI attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, the Debtor hereby irrevocably makes, constitutes and if required by appoints the Administrative Agent, its nominee or any other person whom the Administrative Agent may designate, as the Debtor’s attorney-in-fact with full power and for the limited purpose to sign in the name of the Debtor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Administrative Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remain outstanding (other than any such obligations which by the terms thereof are stated to survive termination of the Loan Documents) or any Loan Document (to the extent the obligations of the Debtor thereunder constitute Secured Obligations) is in effect, and until all of the Commitments shall have terminated. The Debtor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to the Debtor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral of the Debtor or any part thereof, or to any of the Secured Obligations, the Debtor agrees to execute and deliver all such instruments and to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause do all such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably things requested by the Administrative Agent as the Administrative Agent in its sole discretion reasonably deems necessary or appropriate to insure preserve, protect and enforce the attachment, perfection and first priority of, and the ability security interests of the Administrative Agent under the law of such other jurisdiction (and, if the Debtor shall fail to enforce, do so promptly upon the request of the Administrative Agent’s security interest in , then the Administrative Agent may execute any and all such requested documents on behalf of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, Debtor pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate power of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionattorney granted hereinabove).
Appears in 1 contract
Sources: Master Financing Agreement (Zap)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes The Company shall take all actions during the Administrative AgentSecurity Term that may be necessary or desirable, for or that OOGEDT may reasonably request, so as to maintain the ratable benefit validity , perfection , enforceability and priority of the Lenders, at any time OOGEDT's first and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised prior security interest in the Collateral falls within or to enable the scope OOGEDT to protect, exercise or enforce its rights hereunder and in the Collateral, including without limitation (A) the preparation and filing of Article 9A all financing statements (including any continuation or amendment statements), (B) delivering to the OOGEDT (or its designee) any and all instruments, tangible chattel paper, certificated securities or other Collateral in which a security interest may be perfected by possession as set forth in the Texas UCC, (C) granting OOGEDT (or its designee) "control" (as defined in the Texas UCC) over any and all investment property, deposit accounts, securities accounts, (D) filing security agreements and other notices with the United States Patent and Trademark Office and any other government agency in connection with the perfection of security interests in intellectual property Collateral and (E) using commercially reasonable efforts to obtain any and all consents or approvals from any applicable third parties. The OOGEDT (or its designee) is hereby authorized to file financing statements without signature in accordance with the Texas UCC or the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required jurisdiction from time to time and by part 5 of Article 9A of its signature hereto, the Company hereby authorizes the OOGEDT to file against the Company, one or more financing statements (including any continuation or amendment statements) pursuant to the Texas UCC or the Uniform Commercial Code of the State or such any other jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions OOGEDT (which statements may have a description of this paragraph collateral which is broader than that set forth herein provided that, in the event of conflict, the description of the Collateral set forth herein shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, be controlling as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded property or assets in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default which the OOGEDT has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s been granted a security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionLien).
Appears in 1 contract
Sources: Texas Emerging Technology Fund Award and Security Agreement (Ideal Power Inc.)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(d)(i) attached hereto, (iiiC) deposit accounts specially with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivExhibit 5(d)(ii) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure the attachmentfile one or more financing statements (with collateral descriptions broader, perfection and first priority of, and the ability including without limitation “all assets” and/or “all assets of the Administrative Agent to enforcedebtor, whether now owned or existing or owned, acquired or arising hereafter” and/or “all personal property” collateral descriptions, and/or less specific than the description of the Collateral contained herein) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid (other than contingent indemnification obligations for which no claim has been made) and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral with a value in excess of $250,000 is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty of subject to the United States as Administrative Agent’s instructions. Each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which authorizing the Collateral relates. Each Borrower agrees Agent to furnish any file such information to the Administrative Agent promptly upon request.
financing statements (b) Without providing at least 10 days’ prior written notice to the Administrative Agentincluding renewal statements), no Borrower shall change its name, its type of organization, jurisdiction of organization amendments and supplements or such other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Collateral Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to registered Copyrights, executing and delivering a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(g)(i) attached hereto, (iiiC) deposit accounts specially with regard to registered Patents, executing and exclusively used delivering a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Exhibit 5(g)(ii) attached hereto and (D) with regard to registered Trademarks, as applicableexecuting and delivering a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(g)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor hereby authorizes the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Collateral Agent to insure file one or more financing statements (with collateral descriptions that may be broader and/or less specific than the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein and which may describe the Administrative Collateral as “all personal property” or “all assets”) disclosing the Collateral Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Collateral Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remains unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without limitationnotice thereof to such Grantor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than the applicable jurisdiction as of the Closing Date becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to authorize or to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Collateral Agent, filing financing statements then the Collateral Agent may authorize or execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extentpower of attorney granted herein). If any Collateral is in the possession or control of a Grantor’s agents and the Collateral Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Grantor agrees to be noted as the Lender on any certificate of title for a titled good if notify such notation is a condition to attachment, perfection or priority of, or ability agents in writing of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in therein and, upon the Collateral Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable account of the Collateral Agent for the benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any the Collateral if compliance with such provision is a condition Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Collateral Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Premiere Global Services, Inc.)
Perfection of Security Interest. (a) Each Borrower Such Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Collateral Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements (including renewal statements and in lieu statements) or amendments thereof or supplements thereto that (1) indicate or other instruments as the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably deem necessary or appropriate to perfect and maintain the security interests granted hereunder in accordance with the UCC and, provided subject to Permitted Liens, to ensure the first priority of such security interests. Any financing statement filed by the Collateral Agent may contain a general description of the collateral covered thereby, as permitted by the UCC, which states that if no Default the security interest attaches to all personal property or Event to all assets of Default has occurred, provisions of this paragraph the debtor. Such Obligor shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted upon request by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Collateral Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall also execute and deliver to the Administrative Collateral Agent an Intellectual Property Assignment with respect thereto such agreements, assignments or instruments (including affidavits, notices, reaffirmations and shall cause amendments and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such Intellectual Property Assignment other things as the Collateral Agent may reasonably deem necessary or appropriate (i) to be recorded in such office. The provisions of this paragraph shall not applyassure the Collateral Agent that its security interests hereunder are perfected and, if no Default or Event of Default has occurredsubject to Permitted Liens, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lendersfirst priority, including, without limitation, (1A) executing, delivering and, where appropriate, filing such financing statements (including renewal statements and in lieu statements) or amendments relating thereof or supplements thereto under or other instruments as the Uniform Commercial Code, Collateral Agent may from time to time reasonably request in order to perfect and maintain the extent, if any, that such Borrower’s signature thereon is required thereforsecurity interests granted hereunder and to ensure the first priority (subject to Permitted Liens) thereof in accordance with the UCC, (2B) causing the Administrative Agent’s name with regard to be noted as the Lender on any certificate Copyrights, a Grant of title Security Interest in Copyright Rights for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying filing with any provision of any statute, regulation or treaty of the United States as Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Grant of Security Interest in Patent Rights for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Grant of Security Interest in Trademark Rights for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Secured Obligations, such Obligor agrees from time to time upon request of the Collateral Agent to enforceexecute and deliver all such instruments and to do all such other things as the Collateral Agent reasonably deems necessary or appropriate to preserve, protect and enforce the Administrative security interests of the Collateral Agent and the first priority thereof (subject to Permitted Liens) under the law of such other jurisdiction (and, if such Obligor shall fail to do so promptly upon the request of the Collateral Agent’s , then the Collateral Agent may execute any and all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). Such Obligor agrees to ▇▇▇▇ its books and records to reflect the security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral Agent in the Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Unifi Inc)
Perfection of Security Interest. Execute, deliver, and/or file and record such agreements, assignments or instruments (aincluding affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Collateral Agent may reasonably request) Each Borrower and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate
(i) to assure to the Collateral Agent its security interests hereunder, including, without limitation, (A) with regard to Copyrights and Copyright Licenses, a Copyright Security Agreement, (B) with regard to Patents and Patent Licenses, a Patent Security Agreement, and (C) with regard to Trademarks and Trademark Licenses, a Trademark Security Agreement, and (D) with regard to Real Estate, a Mortgage, (ii) to consummate the transactions contemplated hereby, and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that end, each Grantor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, Collateral Agent at any time and from time to time to file in any Uniform Commercial Code jurisdiction filing office any initial financing statements and amendments thereto that (1y) indicate the Collateral (i1) as "all assets assets" or "all personal property" of such Borrower Grantor, or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A 9 of the Uniform Commercial Code of the State or such jurisdictionUCC, or (ii2) as being of an equal or lesser scope or with greater detail, and (2z) contain any other information required by part Part 5 of Article 9A 9 of the Uniform Commercial Code of the State or such jurisdiction UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including including
(i1) whether such Borrower Grantor is an organization, the type of organization and organization, any organization identification number issued to such Borrower andGrantor, and any employer or taxpayer identification number issued to such Grantor, and (ii2) in the case of a financing statement filed as a fixture filing or indicating any Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the such Collateral relates. Each Borrower Grantor agrees to furnish any such information to the Administrative Collateral Agent promptly upon request.
(b) Without providing at least 10 days’ . Each Grantor also ratifies its authorization for the Collateral Agent or any of the other Agents to file any like financing statements or amendments thereto if filed prior written notice to the Administrative Agentdate hereof, no Borrower shall change its namewhether in connection with the security interest granted pursuant to this Security Agreement or the Existing Security Agreement, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has oneas applicable. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account Each Grantor hereby agrees that a Borrower at any time opens or maintainscarbon, such Borrower shallphotographic, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificatedphotostatic, or other investment property now reproduction of this Security Agreement or hereafter acquired of a financing statement is sufficient for filing as a financing statement by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Collateral Agent without notice thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as Grantor wherever the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request in its sole discretion desire to vest in file the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable recordsame. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to To the extent, if any, that any Grantor's authorization given in this subsection (f) is not sufficient, and without otherwise limiting such Borrower’s signature thereon is required thereforauthorization, (2) causing the Administrative Agent’s name to be noted file such financing statements with respect to this Security Agreement, with or without such Grantor's signature, or to file a photocopy of this Security Agreement in substitution for a financing statement, as the Lender on Collateral Agent may deem appropriate and to execute in such Grantor's name such financing statements and amendments thereto and continuation statements which may require such Grantor's signature. If any certificate Collateral is in the possession or control of title for a titled good if Grantor's agent and the Collateral Agent so requests, such notation is a condition Grantor agrees to attachment, perfection or priority of, or ability notify such agent in writing of the Administrative Agent to enforce, the Administrative Collateral Agent’s 's security interest in therein and, upon the Collateral Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Agents' and the Lenders' account and subject to the Collateral Agent's instructions. Each Grantor agrees to ▇▇▇▇ its books and records to reflect the security interest of the LendersCollateral Agent in the Collateral. Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or release or partial release or termination statement or with respect to any financing statement filed by any Agent or any Lender in connection with the Existing Security Agreement, (3) complying with this Security Agreement or any provision of any statute, regulation or treaty other Credit Document without the prior written consent of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability Agent and agrees that it will not do so without the prior written consent of the Administrative Agent Collateral Agent, subject to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit Grantor's rights under Section 9-509(d)(2) of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionUCC.
Appears in 1 contract
Sources: Security Agreement (Friedmans Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in other form and substance reasonably satisfactory acceptable to the Administrative Agent, cause the depositary bank (C) with regard to agree to comply at any time during the continuation Patents, a Notice of an Event Grant of Default Security Interest in Patents for filing with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify Office in the form of Schedule 5(f)(ii) attached hereto or other form reasonably acceptable to the Administrative Agent thereofand (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and if required by Trademark Office in the form of Schedule 5(f)(iii) attached hereto or other form reasonably acceptable to the Administrative Agent, shall execute (ii) to consummate the transactions contemplated hereby and deliver (iii) to otherwise protect and assure the Administrative Agent an Intellectual Property Assignment with respect thereto of its rights and shall cause such Intellectual Property Assignment to be recorded in such officeinterests hereunder. The provisions of this paragraph shall not applyTo that end, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (which may describe the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, collateral as “all assets” or “all personal property”) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Administrative Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes Upon the reasonable request of the Administrative Agent, for the ratable benefit of the Lenders, at any time execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments and do all such other things as the Administrative Agent may deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Exhibit 5(d)(i) attached hereto, (C) with regard to Patents issued by the United States Patent and Trademark Office, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(ii) attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent of its rights and interests hereunder. To that if no Default end, each Grantor authorizes the Administrative Agent to file one or Event more financing statements (with collateral descriptions broader, including without limitation “all assets” and/or “all personal property” collateral descriptions, and/or less specific than the description of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(dthe Collateral contained herein) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at disclosing the Administrative Agent’s requestsecurity interest in any or all of the Collateral of such Grantor without such Grantor’s signature thereon, pursuant to an agreement in form and substance reasonably satisfactory to further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, cause the depositary bank to agree to comply at its nominee or any time during the continuation of an Event of Default with instructions from other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give Grantor any such instructions financing statements (including renewal statements), amendments and supplements, notices or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which similar documents that in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request thereforreasonable discretion would be necessary, forthwith endorseappropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, assign such power, being coupled with an interest, being and deliver remaining irrevocable so long as the same to Secured Obligations (other than (x) Hedging Agreements entered into with a Hedging Bank, (y) Treasury Management Agreements entered into with Treasury Management Banks, or (z) contingent indemnification obligations or contingent expense reimbursement, indemnification, yield protection or tax gross-up obligations, in each case for which no claim has been made) remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to be held as such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral for the ratable benefit of any Grantor or any part thereof, or to any of the LendersSecured Obligations, accompanied by such Grantor agrees to execute and deliver all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time in its sole discretion deems necessary, appropriate or convenient to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated preserve, protect and are issued to such Borrower or its nominee directly by enforce the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and under the law of such other jurisdiction (and, if a Grantor shall act fail to do so promptly upon the instructions request of the Administrative Agent, without then the further consent Administrative Agent may execute any and all such requested documents on behalf of such Borrower, provided that such Borrower shall not be Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in violation the possession or control of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement a Grantor’s agents and the Administrative Agent determines that the rights so requests, such Grantor agrees to notify such agents in writing of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless Agent’s security interest therein and, if an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof andso requests, at instruct them to hold all such Collateral for the request account of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the LendersSecured Creditors, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant subject to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower instructions. Each Grantor agrees to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇▇ ▇▇ §▇▇ its books and records to reflect the security interest of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant Collateral. Notwithstanding any provision to the Administrative Agentcontrary in this Agreement or any other Loan Document, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph Grantors shall not apply, if no Default be required to obtain landlord waivers or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment consents with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation located on any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required real property leased by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionGrantor.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of SCHEDULE 5(f)(i) ATTACHED HERETO, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of SCHEDULE 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of SCHEDULE 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document, any Letter of Credit or any Hedging Agreement shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Obligor agrees to mark ▇▇▇ books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(c)(i)(B) attached hereto, (iiiC) deposit accounts specially with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivExhibit 5(c)(i)(C) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(c)(i)(D) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder, and if required by and, in furtherance of the Administrative Agentforegoing, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
Grantor hereby (k1) Each Borrower further agrees to take any other action reasonably requested by authorizes the Administrative Agent to insure file one or more financing statements (including authorization to describe the attachment, perfection and first priority of, and the ability Collateral as “all assets” or words of the Administrative Agent to enforce, similar meaning) disclosing the Administrative Agent’s security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, such Grantor without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such BorrowerGrantor’s signature thereon is required thereforthereon, (2) causing irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any Lender shall have any Commitment under the Credit Agreement, and so long as any Loan or other Obligation under the Credit Agreement shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim has been asserted), and (3) agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Lender on any certificate of title for a titled good if such notation is a condition Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to attachmentpreserve, perfection or priority of, or ability protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents (other than contract manufacturers and other service providers in the ordinary course of business) and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s reasonable request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty subject to the Administrative Agent’s instructions. Upon the request of the United States as Administrative Agent, each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets to assure to the Agent the effectiveness and priority of such Borrower or words of similar effectits security interests hereunder, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdictionincluding, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower andbut not limited to, (iiA) in the case of a such financing statement filed as a fixture filing statements (including renewal statements) or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any other personal property security legislation in the appropriate state(s) or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinprovince(s), (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit form of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third partyEXHIBIT 6(f)-1 attached hereto, and (vC) if no Default or Event with regard to Patents and Trademarks, a Notice of Default has occurred, deposit accounts which Grant of Security Interest in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign Patents and deliver the same to the Administrative Agent to be held as Collateral Trademarks for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of EXHIBIT 6(f)-2 attached hereto, as applicable(ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that end, each Credit Party agrees that Borrower shall promptly notify the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Credit Party without, to the extentextent permitted by law, such Credit Party's signature thereon, and further each Credit Party also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other Person whom the Agent may designate, as such Credit Party's attorney in fact with full power and for the limited purpose to sign in the name of such Credit Party any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the New Credit Agreement or Working Capital Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document or Working Capital Credit Document or any Loan or Working Capital Revolving Loan shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Credit Party hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Credit Party wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Credit Party or any part thereof, or to any of the Secured Obligations, such Credit Party agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing a Credit Party shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Credit Party pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of a Credit Party's agents and the Agent so requests, such Credit Party agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Credit Party agrees to mark its books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Chattem Inc)
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate
(i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed or amendments thereof or supplements thereto or other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any other personal property security legislation in the appropriate state(s) or province(s), provided that if no Default or Event of Default has occurred(B) with regard to Investment Property, provisions of this paragraph shall not apply to promissory notes execute and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default Securities Intermediary with instructions from the Administrative Agent respect to such depositary bank directing the disposition of funds from time Investment Property to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to execute a securities control agreement in form and substance reasonably satisfactory to the Administrative Collateral Agent, cause such securities intermediary or (as the case may beC) commodity intermediary with regard to agree to comply during the continuation Copyrights, a Notice of an Event Grant of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, Security Interest in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time Copyrights in the possession form of Exhibit 5(f)(ii)(A) attached hereto, (D) with regard to Patents, a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, Notice of Grant of Security Interest in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral Patents for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees filing with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Exhibit 5(f)(ii)(B) attached hereto and (E) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(f)(ii)(C) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Collateral Agent thereof, and if required by may file one or more financing statements (including financing statements containing a collateral description of "all assets" and/or "all personal property" of such Obligor) disclosing the Administrative Collateral Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Obligor's attorney-in-fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Collateral Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remain outstanding or any Note Document between any Obligor and the Collateral Agent or any Holder is in effect, and until all of the Notes shall have been Paid in Full and the Indenture shall have been terminated (except as provided in Section 8.01(iii) of the Indenture). At any time after the Credit Agreement is no longer in effect, each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without notice thereof to such Obligor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Collateral Agent, then the Collateral Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). Upon the request of the Collateral Agent, at any time after the Administrative Agent’s Credit Agreement is no longer in effect, each Obligor agrees to ▇▇▇▇ its books and records to reflect the security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Collateral Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Usc May Verpackungen Holding Inc)
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate
(i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed or amendments thereof or supplements thereto or other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any other personal property security legislation in the appropriate state(s) or province(s), provided that if no Default or Event of Default has occurred(B) with regard to Investment Property, provisions of this paragraph shall not apply to promissory notes execute and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default Securities Intermediary with instructions from the Administrative Agent respect to such depositary bank directing the disposition of funds from time Investment Property to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to execute a securities control agreement in form and substance reasonably satisfactory to the Administrative Collateral Agent, cause such securities intermediary or (as the case may beC) commodity intermediary with regard to agree to comply during the continuation Copyrights, a Notice of an Event Grant of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, Security Interest in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time Copyrights in the possession form of EXHIBIT 5(f)(ii)(A) attached hereto, (D) with regard to Patents, a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, Notice of Grant of Security Interest in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral Patents for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees filing with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of EXHIBIT 5(f)(ii)(B) attached hereto and (E) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of EXHIBIT 5(f)(ii)(C) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Collateral Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Collateral Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Obligor's attorney-in-fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Collateral Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remain outstanding or any Credit Document or Hedging Agreement between any Credit Party and any Lender (to the extent the obligations of such Credit Party thereunder constitute Credit Party Obligations) is in effect, and until all of the Commitments shall have been terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without notice thereof to such Obligor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Collateral Agent, then the Collateral Agent to enforce, the Administrative Agent’s security interest in may execute any and all such Collateral, held for the ratable benefit requested documents on behalf of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory Obligor pursuant to the Administrative Agent and (6) taking all actions required by any earlier versions power of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.attorney granted
Appears in 1 contract
Sources: Security Agreement (Usc May Verpackungen Holding Inc)
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness, perfection and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights registered in the United States, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(d)(i) attached hereto, (iiiC) deposit accounts specially with regard to Patents registered in the United States, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivSchedule 5(d)(ii) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(d)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor authorizes the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Collateral Agent to insure file one or more financing statements (with collateral descriptions broader, including without limitation “all assets” and/or “all personal property” collateral descriptions, and/or less specific than the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Collateral Agent’s security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, such Grantor without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such BorrowerGrantor’s signature thereon is required therefor(provided that no such description shall be deemed to modify the description of Collateral in Section 2), and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such financing statements (2) causing including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Collateral Agent’s name sole discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Domestic Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Collateral Agent without notice thereof to such Grantor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Administrative Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to enforcepreserve, protect and enforce the Administrative security interests of the Collateral Agent under the law of such other jurisdiction (and, if a Grantor shall fail to do so promptly upon the request of the Collateral Agent, then the Collateral Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Collateral Agent so requests, such Grantor agrees to notify such agents in writing of the Collateral Agent’s security interest in therein and, upon the Collateral Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations, subject to any the Collateral if compliance with such provision is a condition Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Collateral Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time deliver to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral Agent such agreements, assignments or instruments (including such affidavits, notices and reaffirmations, amendments and restatements of existing documents) as the Collateral Agent may reasonably request and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient to (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of its security interests hereunder in accordance with the Uniform Commercial Code of UCC and, with respect to registered Intellectual Property (or applications therefor) to the State extent not subject to the UCC, applicable federal law including (A) filing or authorizing the Collateral Agent to file such financing statements (including renewal statements), amendments and supplements or such jurisdiction, or (ii) other instruments as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default or Event (B) with regard to material Copyrights and exclusive Copyright Licenses in respect of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account material registered Copyrights for which any Grantor is the licensee, executing and delivering a Borrower, Notice of Grant of Security Interest in Copyrights for filing with the depositary bank and United States Copyright Office in the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinform of Exhibit 5(b)-1 attached hereto, (iiC) deposit accounts with regard to material Patents, executing and delivering a Notice of Grant of Security Interest in Patents for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Exhibit 5(b)-2 attached hereto and (D) with regard to material registered Trademarks and Trademark applications that are included in the Collateral, as applicableexecuting and delivering a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(b)-3 attached hereto, (ii) consummate the transactions contemplated hereby and (iii) otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor authorizes the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Collateral Agent to insure file one or more financing statements (which may describe the attachment, perfection and first priority of, and collateral as “all assets” or “all personal property” or words of similar effect) disclosing the ability of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Collateral Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, without limitationbeing coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. In the event for any reason the Law of any U.S. jurisdiction other than the State of New York becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Collateral Agent under the Law of such other U.S. jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Collateral Agent, filing financing statements then the Collateral Agent may execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate power of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionattorney granted hereinabove).
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its nameincluding (A) such financing statements (including renewal statements), its type of organization, jurisdiction of organization amendments and supplements or such other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default or Event (B) with regard to Copyrights, a Notice of Default has occurredGrant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, provisions (C) with regard to Patents, a Notice of this paragraph shall not apply Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to promissory notes Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and tangible chattel paper with an aggregate face value Trademark Office in the form of not greater than $100,000.
Schedule 5(f)(iii) attached hereto, (dii) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent’s request, pursuant to an agreement in form Agent of its rights and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from interests hereunder. Each Grantor authorizes the Administrative Agent to prepare and file such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions financing statements (including renewal statements) or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and amendments thereof or other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably deem necessary or appropriate in order to perfect and maintain the security interests granted hereunder in accordance with the UCC. If The collateral descriptions on any securities now such financing statements may be broader or hereafter acquired by a Borrower are uncertificated and are issued more general than the description of the Collateral under this Security Agreement. Each Grantor shall deliver to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof andsuch agreements, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower assignments or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action instruments as the Administrative Agent may reasonably request to vest in assure the Administrative Agent, for the ratable benefit Agent of the Lenders, control, under §9-105 continued priority and perfection of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable recordsecurity interests granted hereunder. The Administrative Agent Each Grantor agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper may file one or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, more financing statements disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in such Collateraltherein and, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, upon the Administrative Agent’s security interest in request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (4) obtaining governmental Secured Parties and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory subject to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionAgent’s instructions.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A Agent of the Uniform Commercial Code effectiveness and priority of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organizationfinancing statements (including renewal statements), the type of organization amendments and any organization identification number issued to supplements or such Borrower and, (ii) in the case of a financing statement filed other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(g)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Exhibit 5(g)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(g)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor hereby agrees that the Administrative Collateral Agent thereof, and if required by may file one or more financing statements (with collateral descriptions broader and/or less specific than the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein and which may include an “all assets” or other similar supergeneric description) disclosing the Administrative Collateral Agent’s security interest in any and or all of the Collateral, Collateral of such Grantor. In the event for any reason the ratable benefit law of any jurisdiction other than the applicable jurisdiction as of the LendersClosing Date becomes or is applicable to the Collateral of such Grantor or any part thereof, includingor to any of the Secured Obligations, without limitationsuch Grantor agrees to authorize or to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (1) executing, delivering and, where appropriateif such Grantor shall fail to do so promptly upon the request of the Collateral Agent, filing financing statements then the Collateral Agent may authorize or execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extentpower of attorney granted herein). If any Collateral is in the possession or control of such Grantor’s agents and the Collateral Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Grantor agrees to be noted as the Lender on any certificate of title for a titled good if notify such notation is a condition to attachment, perfection or priority of, or ability agents in writing of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in therein and, upon the Collateral Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable account of the Collateral Agent for the benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any the Collateral if compliance with such provision is a condition Agent’s instructions. Such Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Collateral Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
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Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent of its rights and interests hereunder. To that if no Default end, each Grantor authorizes the Administrative Agent to file one or Event more financing statements (with collateral descriptions broader and/or less specific than the description of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(dthe Collateral contained herein) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at disclosing the Administrative Agent’s request's security interest in any or all of the Collateral of such Grantor without such Grantor's signature thereon, pursuant to an agreement in form and substance reasonably satisfactory to further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, cause the depositary bank to agree to comply at its nominee or any time during the continuation of an Event of Default with instructions from other Person whom the Administrative Agent may designate, as such Grantor's attorney-in-fact with full power and for the limited purpose to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such BorrowerGrantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. The Administrative Agent Each Grantor hereby agrees with each Borrower that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent shall not give any without notice thereof to such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and Grantor wherever the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, may in its sole discretion desire to file the depositary bank and same. In the Administrative Agent event for any reason the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit law of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds any jurisdiction other than funds North Carolina becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securitiesSecured Obligations, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign Grantor agrees to execute and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time in its sole discretion reasonably deems necessary, appropriate or convenient to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated preserve, protect and are issued to such Borrower or its nominee directly by enforce the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, a Grantor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request execute any and all such requested documents on behalf of such Grantor pursuant to vest the power of attorney granted hereinabove). If any Collateral is in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper possession or control under Section 201 of the Federal Electronic Signatures in Global a Grantor's agents and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrangeso requests, pursuant such Grantor agrees to procedures satisfactory to the Administrative Agent and so long as notify such procedures will not result agents in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request writing of the Administrative Agent's security interest therein and, upon the Administrative Agent's request, instruct them to hold all such Borrower shall, pursuant to an agreement in form Collateral for the account of the holders of the Secured Obligations and substance reasonably satisfactory subject to the Administrative Agent, arrange for 's instructions. Each Grantor agrees to ▇▇▇▇ its books and records to reflect the issuer and any confirmer security interest of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
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Perfection of Security Interest. Each of the Company and the Guarantors shall take all action that may be necessary, or that the Notes Collateral Agent may reasonably request, so as at all times to maintain the validity, perfection, enforceability and priority of the Notes Collateral Agent’s security interest in and Lien on the Collateral or to enable the Notes Collateral Agent to protect, exercise or enforce its rights hereunder and in the Collateral (in each case, subject to the terms of the Intercreditor Agreement), including, but not limited to, (a) Each Borrower hereby irrevocably authorizes the Administrative Agentimmediately discharging all Liens other than Permitted Encumbrances, for the ratable benefit of the Lenders, at any time and from time (b) using commercially reasonable efforts to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral obtain Lien Waiver Agreements (i) as all assets of such Borrower from the owner or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A lessor of the Uniform Commercial Code chief executive office of the State or such jurisdiction, or Company and (ii) as being from the owners or lessors of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A all of the Uniform Commercial Code other premises leased by the Company listed on Schedule 12.03 hereto and all of the State or such jurisdiction for warehouses and other locations used by the sufficiency or filing office acceptance Company listed on Schedule 12.03 hereto in which Equipment and Inventory having a value in excess of any financing statement or amendment$1,000,000 is located, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If delivering to the Notes Collateral Agent (or bailee under the terms of the Intercreditor Agreement), endorsed or accompanied by such instruments of assignment as are necessary or as the Notes Collateral Agent may specify, and stamping or marking, in such manner as are necessary or as the Notes Collateral Agent may specify, any and all chattel paper, instruments, letters of credit and advices thereof and documents evidencing or forming a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For using commercially reasonable efforts to enter into warehousing, lockbox, customs and freight agreements and other custodial arrangements reasonably satisfactory to the Trustee, the Notes Collateral Agent and the Required Holders, and (e) executing and delivering financing statements, Control Agreements, intellectual property security agreements, instruments of pledge, mortgages, notices and assignments, in each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement case in form and substance reasonably satisfactory to the Administrative AgentTrustee, cause the depositary bank Notes Collateral Agent and the Required Holders, relating to agree to comply at any time during the creation, validity, perfection, maintenance or continuation of an Event the Notes Collateral Agent’s security interest and Lien under the Uniform Commercial Code or other Applicable Law. By its signature hereto, each of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank Company and the Administrative Guarantors hereby authorizes the Notes Collateral Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank (without obligation) and the Administrative Agent for Holders to file against such the specific purpose set forth thereinCompany and each Guarantor, (ii) deposit accounts for which the Administrative Agent is the depositaryone or more financing, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to continuation or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same amendment statements pursuant to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement Uniform Commercial Code in form and substance reasonably satisfactory to the Administrative AgentRequired Holders (which statements may have a description of collateral which is broader than that set forth herein, cause including without limitation a description of Collateral as “all assets” and/or “all personal property” of the issuer to agree to comply during Company or the continuation relevant Guarantor). All documented charges, expenses and fees the Notes Collateral Agent or the Holders may incur in doing any of an Event of Default with instructions from the Administrative Agent as to such securitiesforegoing, without further consent of such Borrower or such nominee. If and any securitieslocal taxes relating thereto, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, be at the Administrative Agent’s request, pursuant to a securities control agreement in form sole expense of the Company and substance reasonably satisfactory payable by the Company to the Administrative Agent, cause such securities intermediary Notes Collateral Agent or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act orHolders, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur later than ten (10) Business Days after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000written demand.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority (subject to Permitted Liens)) of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in writing in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments with regard to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Copyrights registered with the Register United States Copyright Office, a Notice of Grant of Security Interest in Copyrights or for filing with the United States Copyright Office in the form of Exhibit 5(d)(i) attached hereto, (C) with regard to Patents issued with the United States Patent and Trademark Office and all applications for Patents filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(ii) attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, that Borrower shall promptly notify a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure prepare and file one or more financing statements (including continuation statements and amendments thereof), with collateral descriptions broader, including without limitation “all assets, whether now owned or hereafter acquired” and/or “all personal property, whether now owned or hereafter acquired” collateral descriptions, and/or less specific than the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforceCollateral contained herein, disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal or continuation statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid (other than in respect of unasserted indemnification and expense reimbursement obligations that survive the termination of this Security Agreement or obligations and liabilities under any certificate Swap Contract between any Loan Party and any Swap Bank or any Treasury Management Agreement between any Loan Party and any Treasury Management Bank, in each case, not yet due and payable) and until the Commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of title this Security Agreement or any such financing statement is sufficient for filing as a titled good if financing statement by the Administrative Agent without notice thereof to such notation Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the reasonable request of the Administrative Agent in writing, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral with an aggregate value of $100,000 or more is at any time is in the possession or control of any warehouseman, bailee or any agent or processor of such Grantor, such Grantor agrees to notify such Person in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct such Collateral, held Person to hold all such Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty of subject to the United States as Administrative Agent’s instructions. Each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of Schedule 5(f)(i), (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document, any Letter of Credit or any Hedging Agreement shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the occurrence of and during the continuation of and Event of Default, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Obligor agrees to mark ▇▇▇ books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Simcala Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon request.
such agreements, assignments or instruments and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority (subject to Permitted Liens)) of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in writing in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments with regard to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Copyrights registered with the Register United States Copyright Office, a Notice of Grant of Security Interest in Copyrights or for filing with the United States Copyright Office in the form of Exhibit 5(d)(i) attached hereto, (C) with regard to Patents issued with the United States Patent and Trademark Office and all applications for Patents filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(ii) attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, that Borrower shall promptly notify a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(d)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure prepare and file one or more financing statements (including continuation statements and amendments thereof), with collateral descriptions broader, including without limitation “all assets, whether now owned or hereafter acquired” and/or “all personal property, whether now owned or hereafter acquired” collateral descriptions, and/or less specific than the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforceCollateral contained herein, disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal or continuation statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid (other than in respect of unasserted indemnification and expense reimbursement obligations that survive the termination of this Security Agreement or obligations and liabilities under any certificate Secured Swap Agreement or any Secured Treasury Management Agreement, in each case, not yet due and payable) and until the Commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of title this Security Agreement or any such financing statement is sufficient for filing as a titled good if financing statement by the Administrative Agent without notice thereof to such notation Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the reasonable request of the Administrative Agent in writing, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral with an aggregate value of $100,000 or more is at any time is in the possession or control of any warehouseman, bailee or any agent or processor of such Grantor, such Grantor agrees to notify such Person in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct such Collateral, held Person to hold all such Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty of subject to the United States as Administrative Agent’s instructions. Each Grantor agrees to any Collateral if compliance with such provision is a condition m▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent in the Collateral. Each Borrower Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements and (including continuation statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifydeem necessary or appropriate in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided including, without limitation, any financing statement that if no Default describes the Collateral as “all personal property” or Event “all assets” of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account such Obligor or that a Borrower at any time opens or maintains, such Borrower shall, at describes the Administrative Agent’s request, pursuant to an agreement Collateral in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from some other manner as the Administrative Agent to deems necessary or advisable. To the extent permitted by applicable law, each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that financing statement is sufficient for filing as a financing statement by the Administrative Agent shall not give any without notice thereof to such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and Obligor wherever the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent may reasonably determine is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower appropriate. Each Obligor shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign also execute and deliver the same to the Administrative Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (i) to be held as Collateral for assure to the ratable benefit of the LendersAdministrative Agent its security interests hereunder are perfected, accompanied by including (A) such financing statements (including continuation statements) or amendments thereof or supplements thereto or other instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any securities now other personal property security legislation in the appropriate state(s) or hereafter acquired by a Borrower are uncertificated province(s), (B) with regard to Investment Property, execute and are issued cause any Securities Intermediary with respect to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant Investment Property to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to execute a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions , (C) with regard to Copyrights, a Notice of this paragraph shall not apply, if no Default or Event Grant of Default has occurred, to commercial tort claims with an aggregate value not Security Interest in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered Copyrights for filing with the Register United States Copyright Office in the form of Copyrights or Schedule 5(f)(i) attached hereto, (D) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (E) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, each Obligor hereby irrevocably makes, constitutes and if required by appoints the Administrative Agent, its nominee or any other person whom the Administrative Agent may designate, as such Obligor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Obligor any notices or any similar documents which in the Administrative Agent’s reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remain outstanding (other than any such obligations which by the terms thereof are stated to survive termination of the Credit Documents) or any Credit Document or Secured Hedging Agreement is in effect, and until all of the Commitments shall have terminated. In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent an Intellectual Property Assignment with respect thereto in its reasonable discretion reasonably deems necessary or appropriate to preserve, protect and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by enforce the Administrative Agent to insure the attachment, perfection and first priority of, and the ability security interests of the Administrative Agent under the law of such other jurisdiction (and, if an Obligor shall fail to enforce, do so promptly upon the request of the Administrative Agent’s security interest in , then the Administrative Agent may execute any and all such requested documents on behalf of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, such Obligor pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate power of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionattorney granted hereinabove).
Appears in 1 contract
Sources: Security Agreement (Pantry Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes The security interest granted to the Administrative Agent, Collateral Agent (for the ratable benefit of the Lenders, at any time and from time Senior Secured Parties) pursuant to time to file this Agreement in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral constitutes a valid first-priority lien in the Collateral subject, with respect to any proceeds, to the limitations set forth in Section 9-315 of the UCC. The security interest granted to the Collateral Agent (for the benefit of the Senior Secured Parties) pursuant to this Agreement in the Collateral will be perfected (i) as all assets with respect to any property that can solely be perfected by filing, to the extent Article 9 of such Borrower or words the UCC applies thereto, upon the filing of similar effect, regardless of whether any particular asset comprised UCC financing statements in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or filing offices identified on Exhibit C and (ii) with respect to any property that can be perfected by possession, upon the Collateral Agent receiving possession thereof together with any applicable instruments of transfer in the form attached hereto as being of an equal or lesser scope or with greater detailExhibit B, and (2) contain any other information required by part 5 of Article 9A of in each case such security interest will be, as to Collateral perfected under the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentUCC, including (i) whether such Borrower is an organization, the type of organization superior and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information prior to the Administrative Agent promptly upon requestrights of all third Persons now existing or hereafter arising whether by way of mortgage, Lien, security interests, encumbrance, assignment or otherwise, subject to Permitted Liens.
(b) Without providing at least 10 days’ prior written notice Except to the Administrative Agent, no Borrower shall change its name, its type extent possession of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent portions of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, Collateral is required for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, orperfection, after giving effect to the filings, registrations and giving of notice referred to in this section, all such action as is necessary has been taken (or will be taken prior to the date of the first Funding Notice) to establish and perfect the Collateral Agent’s rights in and to such Collateral to the extent the Collateral Agent’s security interest can be perfected by filing, including any withdrawal not otherwise permitted by recording, filing, registration, giving of notice or other similar action. Subject to the Loan Documentsrequirements contained in the UCC with respect to the filing of continuation statements, would occur. The provisions as of this paragraph shall not apply to (i) any deposit account for which a Borrowerthe date hereof, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrowerno filing, the depositary bank and the Administrative Agent for the specific purpose set forth thereinrecording, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to re-filing or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds re-recording other than funds those listed on Exhibit C is necessary to perfect and maintain the perfection of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same security interests granted to the Administrative Collateral Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(gSenior Secured Parties) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with extent the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in any can be perfected by filing, and all such filings have been made (or will be made prior to the date of the Collateral, for the ratable benefit first Funding Notice). All such Collateral that requires perfection of the Lenders, including, without limitation, Lien and security interest described above by possession has been (1or will be contemporaneously with the execution of this Agreement) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, delivered to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Collateral Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Pledge and Security Agreement (First United Ethanol LLC)
Perfection of Security Interest. (a) Each Borrower The Issuer hereby irrevocably authorizes the Administrative Agentrepresents and warrants, for the ratable benefit as of the Lendersclosing date, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral that:
(i) this Agreement creates a valid and continuing security interest (as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised defined in the Collateral falls within applicable UCC) in the scope of Article 9A Receivables in favor of the Uniform Commercial Code Indenture Trustee on behalf of the State or Holders of the Notes including the Series 2002-2 Noteholders, which security interest is prior to all other liens, and is enforceable as such jurisdiction, or as against creditors of and purchasers from the Issuer;
(ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A the Receivables constitute "accounts" within the meaning of the Uniform Commercial Code applicable UCC;
(iii) the Issuer owns and has good and marketable title to the Receivables free and clear of any lien, claim or encumbrance of any Person;
(iv) the Issuer has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Receivables granted to the Indenture Trustee on behalf of the State Holders of the Notes including the Series 2002-2 Noteholders hereunder;
(v) other than the security interest granted to the Indenture Trustee, pursuant to this Agreement, the Issuer has not pledged, assigned, sold, granted a security interest in, or such jurisdiction for otherwise conveyed any of the sufficiency or Receivables. The Issuer has not authorized the filing office acceptance of and is not aware of any financing statement or amendment, including (i) whether such Borrower is an organization, statements against the type Issuer that include a description of organization and collateral covering the Receivables other than any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information relating to the Administrative Agent promptly upon requestsecurity interest granted to the Indenture Trustee hereunder or that has been terminated. The Issuer is not aware of any judgment or tax lien filings against the Issuer.
(b) Without providing at least 10 days’ The Indenture Trustee may not waive a breach of any of the foregoing representations unless prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if such waiver (1) it has one. If a Borrower does not have an organizational identification number notified Standard & Poor's Rating Service ("S&P") of its intention to waive such breach and later obtains one, such Borrower shall forthwith notify S&P has informed the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority ofIndenture Trustee, and the ability Indenture Trustee has informed the Series 2002-2 Noteholders, as to whether such waiver will result in a downgrade of the Administrative Agent to enforce, the Administrative Agent’s security interest in any Series 2002-2 Notes and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as Indenture Trustee has subsequently received the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability unanimous consent of the Administrative Agent Series 2002-2 Noteholders to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionwaiver.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the --------------------------------- Administrative Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent, for Agent may reasonably request) and do all such other things as the ratable benefit of the Lenders, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral Administrative Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information assure to the Administrative Agent promptly upon request.
its security interests hereunder, including (bA) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization such financing statements (including renewal statements) or amendments thereof or supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant ----------------- of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with ----------------- regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions ------------ contemplated hereby and (iii) to otherwise protect and assure the Administrative - Agent of its rights and interests hereunder. To that if no Default end, each Obligor agrees that the Administrative Agent may file one or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at more financing statements disclosing the Administrative Agent’s request's security interest in any or all of the Collateral of such Obligor without, pursuant to an agreement in form the extent permitted by law, such Obligor's signature thereon, and substance reasonably satisfactory to further each Obligor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, cause the depositary bank to agree to comply at its nominee or any time during the continuation of an Event of Default with instructions from other person whom the Administrative Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such BorrowerObligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Administrative Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as either of the Revolving Credit Agreement or Term Loan Agreement in effect or any amounts payable thereunder or under any other Credit Document shall remain outstanding, and until all of the Commitments thereunder shall have terminated. The Administrative Agent Each Obligor hereby agrees with each Borrower that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent shall not give any without notice thereof to such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and Obligor wherever the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, may in its sole discretion desire to file the depositary bank and same. In the Administrative Agent event for any reason the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit law of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds any jurisdiction other than funds New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securitiesSecured Obligations, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign Obligor agrees to execute and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time in its sole discretion reasonably deems necessary or appropriate to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated preserve, protect and are issued to such Borrower or its nominee directly by enforce the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, an Obligor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request execute any and all such requested documents on behalf of such Obligor pursuant to vest the power of attorney granted hereinabove). If any Collateral is in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper possession or control under Section 201 of the Federal Electronic Signatures in Global an Obligor's agents and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrangeso requests, pursuant such Obligor agrees to procedures satisfactory to the Administrative Agent and so long as notify such procedures will not result agents in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request writing of the Administrative Agent's security interest therein and, upon the Administrative Agent's request, instruct them to hold all such Borrower shall, pursuant to an agreement in form Collateral for the Lenders' account and substance reasonably satisfactory subject to the Administrative Agent, arrange for 's instructions. Each Obligor agrees to m▇▇▇ its books and records to reflect the issuer and any confirmer security interest of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Policy Management Systems Corp)
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of Schedule 5(d)(i), (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(d)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(d)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document, any Letter of Credit or any Hedging Agreement shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Obligor agrees to ▇▇▇▇ its books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of Schedule 5(f)(i), (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, 8 appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document, any Letter of Credit shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Obligor agrees to mark ▇▇▇ books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Steel Heddle International Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes Except as set forth herein, each Loan Party shall take all action that may be necessary or desirable, or that Agent may request, so as at all times to maintain the Administrative validity, perfection, enforceability and priority of Agent’s Lien in the Collateral to the extent required by this Agreement or any Other Documents. Without limiting the generality of the foregoing, in the case of each item of Well Services Equipment consisting of titled motor vehicles, each Loan Party shall (i) promptly after acquiring such title, arrange for the notation of Agent’s first priority Lien thereon and, if requested by Agent, shall provide Agent with evidence reasonably satisfactory to Agent that such title has been submitted to the applicable state motor vehicle department (or equivalent state Governing Body), and (ii) after such Loan Party shall have received such title noting Agent’s first priority Lien thereon, shall promptly deliver such title to Agent or, at Agent’s direction, to the Title Agent. Notwithstanding the foregoing, Loan Parties shall not be required to deliver titles to Agent or Title Agent with respect to light duty pickup trucks, passenger cars and smaller trailers except upon Agent’s request, which request may be made by Agent, in its sole discretion, at any time following the Closing Date. All titles for such Well Services Equipment consisting of titled motor vehicles (other than titles for light duty pickup trucks, passenger cars and smaller trailers, unless and until requested by Agent as provided above) will be held in the possession of Agent or its bailee, for the ratable benefit of the LendersAgent.
(b) Agent may, and each Loan Party hereby authorizes Agent to, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial accordance with Section 9-509 of the UCC, financing statements and amendments thereto that (1) indicate describe the Collateral (i) as “all assets of such Borrower assets” or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A language of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, applicable Loan Party and (2) which contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction UCC for the sufficiency or filing office acceptance of any financing statement statements, continuation statements or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relatesamendments. Each Borrower Loan Party agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall Each Loan Party shall, at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifytime, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, take such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative steps as Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply may request to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the baileeacknowledgment, in form and substance reasonably satisfactory to the Administrative Agent, of any bailee having possession of any of the Collateral, stating that the bailee holds such Collateral for Agent, (ii) obtain “control” of any letter-of-credit rights, deposit accounts (other than Restricted Accounts) or electronic chattel paper (as such terms are defined in the UCC with corresponding provisions thereof defining what constitutes “control” for such items of Collateral), with any agreements establishing control to be in form and substance reasonably satisfactory to Agent, and (iii) otherwise ensure the continued perfection and priority of Agent’s Liens in any of the Collateral for the benefit of the Administrative Agent Lenders and of its rights therein. If any Loan Party shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any time, acquire a “transferable record,commercial tort claim” (as that such term is defined in Section 201 the UCC) in excess of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdictionFive Hundred Thousand ($500,000) Dollars, such Borrower Loan Party shall promptly notify the Administrative Agent thereof andin writing (which notice shall be deemed to be an update of Schedule 5.8(b)), at the request of the Administrative therein providing a reasonable description and summary thereof, and upon delivery thereof to Agent, such Loan Party shall take such action as the Administrative Agent may reasonably request be deemed to vest in the Administrative thereby have granted to Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global each Secured Party (and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant Loan Party hereby grants to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter each Secured Party) a Lien in and to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that each such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof claim and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the all proceeds thereof, all upon the terms of and governed by this AgreementAgreement to secure the prompt payment and performance of all of the Obligations. Without limiting the generality of the foregoing, with such writing Loan Parties shall on the Closing Date deliver to be Agent deposit account control agreements covering the Local Bank Accounts, executed by and among Agent, the applicable depository banks and the Loan Parties in whose name the Local Bank Accounts are maintained, in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph , and Agent shall not apply, if no Default or send a Control Notice to such depository banks at any time a Cash Dominion Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000shall have occurred and be continuing.
(jd) If a Borrower at any time holds any Intellectual Property registered Each Loan Party hereby confirms and ratifies all UCC financing statements filed by Agent with the Register of Copyrights respect to such Loan Party on or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver prior to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions date of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000the Agreement.
(ke) Each Borrower further agrees to take All charges, expenses and fees Agent may incur in doing any other action reasonably requested by of the Administrative Agent to insure the attachment, perfection and first priority offoregoing, and any taxes relating thereto, shall be charged to the ability of Borrowers’ Account as a Revolving Advance and added to the Administrative Agent to enforceObligations, the Administrative or, at Agent’s security interest in any and all of the Collateraloption, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, shall be paid by Loan Parties to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionpromptly upon demand.
Appears in 1 contract
Sources: Loan and Security Agreement (Forbes Energy International, LLC)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
(b) Without providing at least 10 days’ prior written notice and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its nameincluding such financing statements (including renewal statements), its type of organization, jurisdiction of organization amendments and supplements or such other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to (i) perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes (ii) consummate the transactions contemplated hereby and tangible chattel paper with an aggregate face value of not greater than $100,000.
(diii) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at otherwise protect and assure the Administrative Agent’s requestAgent of its rights and interests hereunder. To that end, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from Grantor authorizes the Administrative Agent to such depositary bank directing file one or more financing statements (with collateral descriptions that may be broader and/or less specific than the disposition description of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that Collateral contained herein and which may describe the Administrative Agent shall not give any such instructions collateral as “all assets” or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i“all personal property”) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of the Grantor without the Grantor’s signature thereon, and further the Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as the Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. The Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to the Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than Illinois becomes or is a condition applicable to attachment, perfection the Collateral of the Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, the Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if the Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of the Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of the Grantor’s agents and the Administrative Agent so requests, the Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability account of the Administrative Agent and the other holders of the Secured Obligations and subject to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictioninstructions.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization including (A) such financing statements (including renewal statements) or amendments thereof or supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of Schedule 5(f)(i), (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, each Obligor agrees that the Administrative Agent may file one or more financing statements disclosing the Administrative Agent's security interest in any or all of the Collateral of such Obligor without, to the extent permitted by law, such Obligor's signature thereon, and if required by further each Obligor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, shall execute and deliver to its nominee or any other person whom the Administrative Agent an Intellectual Property Assignment may designate, as such Obligor's attorney in fact with respect thereto full power and shall cause for the limited purpose to sign in the name of such Intellectual Property Assignment Obligor any such financing statements, or amendments and supplements to be recorded financing statements, renewal financing statements, notices or any similar documents which in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interest interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document or any Letter of Credit or any Hedging Agreement between any Obligor and any Lender, or any Affiliate of a Lender, shall remain outstanding, and until all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, Commitments thereunder shall have terminated. Each Obligor hereby agrees that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.carbon,
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes Execute, acknowledge, deliver, record, re-record, file, re-file, register, re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative AgentAgent may reasonably require, for the ratable benefit of the Lendersdeem necessary, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information assure to the Administrative Agent promptly upon request.
the effectiveness and priority of its security interests hereunder, including, without limitation, (bA) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default reasonably request in order to perfect and maintain the security interests granted hereunder or Event under any of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper the Collateral Documents in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to United States registered Copyrights, a Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office substantially in the depositaryform of Schedule 5(c)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to United States Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice substantially in the form of Schedule 5(c)(ii) attached hereto, (D) with regard to United States Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office substantially in the form of Schedule 5(c)(iii) attached hereto, and (E) with regard to Foreign IP Assets, after the occurrence and during the continuance of an Event of Default, such instruments as applicable, that Borrower shall promptly notify the Administrative Agent thereofor the Required Lenders may from time to time reasonably request in order to perfect and maintain the security interest granted hereunder in accordance with the Laws of the applicable foreign jurisdictions, (ii) to consummate the transactions contemplated hereby (iii) correct any material defect or error that may be discovered in this Security Agreement or any of the Collateral Documents or in the execution, acknowledgment, filing or recordation thereof and if required by the Administrative Agent, shall execute (iv) to otherwise protect and deliver to assure the Administrative Agent an Intellectual Property Assignment with respect thereto of its rights and shall cause such Intellectual Property Assignment to be recorded in such officeinterests hereunder. The provisions of this paragraph shall not applyTo that end, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (which may describe the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, collateral as “all assets” or “all personal property”) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the Laws of title for a titled good if such notation is a condition any jurisdiction other than New York become or are applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the Laws of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of such Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Administrative Agent’s instructions. Such Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Ipayment Inc)
Perfection of Security Interest. (a) Each Borrower Obligor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements and (including renewal statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifydeem reasonably necessary or appropriate in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided which financing statements may be without the signature of such Obligor (to the extent such signature is not required under the laws of any applicable jurisdiction), and which may describe the Collateral as "all assets" or "all personal property" or words of like import. Each Obligor shall also execute and deliver to the Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Agent may reasonably request) and do all such other things as the Agent may reasonably deem necessary or appropriate (i) to assure to the Agent its security interests hereunder, including (A) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the form of Schedule 6(f)(i) attached hereto, (B) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 6(f)(ii) attached hereto, (C) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 6(f)(iii) attached hereto and (D) with regard to Deposit Accounts, Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper, all agreements, assignments, instruments or other documents as requested by the Agent for the purpose of obtaining and maintaining Control, including any deposit account control agreements, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that if no Default end, each Obligor hereby irrevocably makes, constitutes and appoints the Agent, its nominee or Event any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of Default has occurredsuch Obligor any such notices or similar documents which in the Agent's reasonable discretion would be necessary, provisions appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable for so long as this Agreement is in effect and until this Agreement is terminated in accordance with Section 13(a) hereof. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this paragraph Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if an Obligor shall not apply fail to promissory notes do so promptly upon the request of the Agent, then the Agent may execute any and tangible chattel paper with an aggregate face all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). If any Collateral having a value of not greater than $100,000.
(d) For each deposit account that 100,000 or more is in the possession or control of a Borrower at warehouseman, bailee or any time opens agent or maintainsprocessor of an Obligor and the Agent so requests, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent Obligor agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, notify such agents in writing of the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth Agent's security interest therein, (ii) deposit accounts instruct them to hold all such Collateral for which the Administrative Agent is Lenders' account and subject to the depositary, Agent's instructions and (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement acknowledgment from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, such Person that the bailee holds it is holding such Collateral for the benefit of the Administrative Agent. Each Obligor agrees to mark its books and records to reflect the security interest ▇▇ the Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000Collateral.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower The Issuer hereby irrevocably authorizes the Administrative Agentrepresents and warrants, for the ratable benefit as of the Lendersclosing date, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral that:
(i) this Agreement creates a valid and continuing security interest (as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised defined in the Collateral falls within applicable UCC) in the scope of Article 9A Receivables in favor of the Uniform Commercial Code Indenture Trustee on behalf of the State or Holders of the Notes including the Series 2002-3 Noteholders, which security interest is prior to all other liens, and is enforceable as such jurisdiction, or as against creditors of and purchasers from the Issuer;
(ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A the Receivables constitute "accounts" within the meaning of the Uniform Commercial Code applicable UCC;
(iii) the Issuer owns and has good and marketable title to the Receivables free and clear of any lien, claim or encumbrance of any Person;
(iv) the Issuer has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Receivables granted to the Indenture Trustee on behalf of the State Holders of the Notes including the Series 2002-3 Noteholders hereunder;
(v) other than the security interest granted to the Indenture Trustee, pursuant to this Agreement, the Issuer has not pledged, assigned, sold, granted a security interest in, or such jurisdiction for otherwise conveyed any of the sufficiency or Receivables. The Issuer has not authorized the filing office acceptance of and is not aware of any financing statement or amendment, including (i) whether such Borrower is an organization, statements against the type Issuer that include a description of organization and collateral covering the Receivables other than any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information relating to the Administrative Agent promptly upon requestsecurity interest granted to the Indenture Trustee hereunder or that has been terminated. The Issuer is not aware of any judgment or tax lien filings against the Issuer.
(b) Without providing at least 10 days’ The Indenture Trustee may not waive a breach of any of the foregoing representations unless prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if such waiver (1) it has one. If a Borrower does not have an organizational identification number notified Standard & Poor's Rating Service ("S&P") of its intention to waive such breach and later obtains one, such Borrower shall forthwith notify S&P has informed the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority ofIndenture Trustee, and the ability Indenture Trustee has informed the Series 2002-3 Noteholders, as to whether such waiver will result in a downgrade of the Administrative Agent to enforce, the Administrative Agent’s security interest in any Series 2002-3 Notes and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as Indenture Trustee has subsequently received the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability unanimous consent of the Administrative Agent Series 2002-3 Noteholders to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionwaiver.
Appears in 1 contract
Sources: Indenture Supplement (Household Private Label Credit Card Master Note Trust I)
Perfection of Security Interest. (a) M▇▇▇ its books and records to reflect the security interest of the Administrative Agent in the Collateral. Each Borrower Debtor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Agent to prepare and from time to time to file in any Uniform Commercial Code jurisdiction any initial such financing statements and (including renewal statements) or amendments thereof or supplements thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default deem necessary or Event of Default has occurred, provisions of this paragraph appropriate in order to perfect and maintain the security interests granted hereunder in accordance with the UCC. Each Debtor shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign also execute and deliver the same to the Administrative Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request) and do all such other things requested by the Administrative Agent as the Administrative Agent may reasonably deem necessary or appropriate (i) to be held as Collateral for assure to the ratable benefit of the LendersAdministrative Agent that its security interests hereunder are perfected, accompanied by including (A) such financing statements (including renewal statements) or amendments thereof or supplements thereto or other instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC and any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment personal property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time security legislation in the possession of a baileeappropriate state(s) or province(s), each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory (B) with regard to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Copyrights registered with the Register United States Copyright Office, a Notice of Grant of Security Interest in Copyrights or for filing with the United States Copyright Office in the form of Schedule IX attached hereto, (C) with regard to Patents registered with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule X attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Office, that Borrower shall promptly notify a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule XI attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, each Debtor hereby irrevocably makes, constitutes and if required by appoints the Administrative Agent, its nominee or any other person whom the Administrative Agent may designate, as such Debtor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Debtor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Administrative Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations remain outstanding (other than any such obligations which by the terms thereof are stated to survive termination of the Loan Documents) or any Loan Document (to the extent the obligations of such Debtor thereunder constitute Secured Obligations) is in effect, and until all of the Commitments shall have terminated. Each Debtor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Debtor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than Illinois becomes or is applicable to the Collateral of any Debtor or any part thereof, or to any of the Secured Obligations, such Debtor agrees to execute and deliver all such instruments and to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause do all such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably things requested by the Administrative Agent as the Administrative Agent in its sole discretion reasonably deems necessary or appropriate to insure preserve, protect and enforce the attachment, perfection and first priority of, and the ability security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Debtor shall fail to enforce, do so promptly upon the request of the Administrative Agent’s security interest in , then the Administrative Agent may execute any and all such requested documents on behalf of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, such Debtor pursuant to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate power of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionattorney granted hereinabove).
Appears in 1 contract
Sources: Master Financing Agreement (Zap)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request. Each Borrower also ratifies its authorization for the Administrative Agent to have filed in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurredoccurred and is continuing, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000500,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an a control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, continuing or would occuroccur as a result thereof. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, party and (v) if no Default or Event of Default has occurredoccurred and is continuing, deposit accounts which in the aggregate hold funds not in excess of $100,000500,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, intermediary and (ii) if no Default or Event of Default has occurredoccurred and is continuing, financial assets with an aggregate value not in excess of $100,000500,000.
(f) If any goods with an aggregate book value in excess of $500,000 are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures reasonably satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurredoccurred and is continuing, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000500,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurredoccurred and is continuing, to letters of credit with an aggregate face value not in excess of $100,000500,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claimclaim in excess of $500,000, that Borrower shall immediately promptly notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Administrative Agent.
(j) If required by the Administrative Agent, each Borrower that owns any Intellectual Property that is registered with the United States Patent and Trademark Office or the United States Copyright Office, shall execute and deliver an Intellectual Property Assignment and shall record such Intellectual Property Assignment with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent occurred and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurredis continuing, to Intellectual Property with an aggregate value not in excess of $100,000500,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance reasonably satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to Lender such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as Lender may reasonably request) indicate the Collateral and do all such other things as Lender may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentto assure to Lender its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper instruments as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent Lender may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to patents and patent applications, a Notice of Grant of Security Interest in Patents for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify Office in the Administrative Agent thereofform of SCHEDULE 6 hereto, and if required by (C) with regard to trademarks and trademark applications, a Notice of Grant of Security Interest in Trademarks for filing with the Administrative AgentUnited States Patent and Trademark Office in the form of SCHEDULE 7 hereto, shall execute (ii) to consummate the transactions contemplated hereby and deliver (iii) to the Administrative Agent an Intellectual Property Assignment with respect thereto otherwise protect and shall cause such Intellectual Property Assignment to be recorded in such officeassure Lender of its rights and interests hereunder. The provisions of this paragraph shall not applyTo that end, if no Default each Obligor agrees that Lender may file one or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s more financing statements disclosing Lender's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints Lender, its nominee or any other person whom Lender may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in Lender's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as any amounts remain payable under the Note or under any other Loan Document. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by Lender wherever Lender may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than Texas becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as Lender in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of Lender under the law of such other jurisdiction (and, if anyan Obligor shall fail to do so promptly upon the request of Lender, that then Lender may execute any and all such Borrower’s signature thereon requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). If any Collateral is required thereforin the possession or control of an Obligor's agents and Lender so requests, (2) causing the Administrative Agent’s name such Obligor agrees to be noted as the Lender on any certificate notify such agents in writing of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s Lender's security interest in therein and, upon the Lender's request, instruct them to hold all such Collateral, held Collateral for Lender's account and subject to Lender's instructions. Each Obligor agrees to mark ▇▇▇ books and records to reflect the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest of Lender in such the Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Subordinated Guaranty and Security Agreement (Genicom Corp)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization including (A) such financing statements (including renewal statements) or amendments thereof or supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and reasonably assure the Administrative Agent of its rights and interests hereunder. To that if no Default end, each Obligor agrees that the Administrative Agent may file one or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at more financing statements disclosing the Administrative Agent’s request's security interest in any or all of the Collateral of such Obligor without, pursuant to an agreement in form the extent permitted by law, such Obligor's signature thereon, and substance reasonably satisfactory to further each Obligor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, cause the depositary bank to agree to comply at its nominee or any time during the continuation of an Event of Default with instructions from other person whom the Administrative Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such BorrowerObligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Administrative Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable and in effect so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document, any Letter of Credit or any Hedging Agreement between any Credit Party and any Lender in connection with the Loans shall remain outstanding, and until all of the Commitments thereunder shall have terminated. The Administrative Agent Each Obligor hereby agrees with each Borrower that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent shall not give any without notice thereof to such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and Obligor wherever the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, may in its reasonable discretion desire to file the depositary bank and same. In the Administrative Agent event for any reason the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit law of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds any jurisdiction other than funds Georgia becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securitiesSecured Obligations, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign Obligor agrees to execute and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time in its sole discretion reasonably deems necessary or appropriate to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated preserve, protect and are issued to such Borrower or its nominee directly by enforce the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, an Obligor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request execute any and all such requested documents on behalf of such Obligor pursuant to vest the power of attorney granted hereinabove). If any Collateral is in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper possession or control under Section 201 of the Federal Electronic Signatures in Global an Obligor's agents and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrangeso requests, pursuant such Obligor agrees to procedures satisfactory to the Administrative Agent and so long as notify such procedures will not result agents in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request writing of the Administrative Agent's security interest therein and, upon the Administrative Agent's request, instruct them to hold all such Borrower shall, pursuant to an agreement in form Collateral for the Lenders' account and substance reasonably satisfactory subject to the Administrative Agent, arrange for 's instructions. Each Obligor agrees to mark its books and records to reflect the issuer and any confirmer security interest of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate
(i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organizationfinancing statements (including renewal statements), the type of organization amendments and any organization identification number issued to supplements or such Borrower and, (ii) in the case of a financing statement filed other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(f)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Grantor agrees that the Administrative Collateral Agent thereof, and if required by may file one or more financing statements (with collateral descriptions broader and/or less specific than the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability description of the Administrative Agent to enforce, Collateral contained herein) disclosing the Administrative Collateral Agent’s 's security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor's signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor's attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Collateral Agent's reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without limitationnotice thereof to such Grantor wherever the Collateral Agent may in its sole discretion desire to file the same (the Collateral Agent shall give prompt notice to the Borrower after any such filing but the failure to give such notice shall not affect the validity of such filing). In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (1) executing, delivering and, where appropriateif a Grantor shall fail to do so promptly upon the request of the Collateral Agent, filing financing statements then the Collateral Agent may execute any and amendments relating thereto under the Uniform Commercial Code, all such requested documents on behalf of such Grantor pursuant to the extentpower of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor's agents and the Collateral Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Grantor agrees to be noted as the Lender on any certificate of title for a titled good if notify such notation is a condition to attachment, perfection or priority of, or ability agents in writing of the Administrative Agent to enforce, the Administrative Collateral Agent’s 's security interest in therein and, upon the Collateral Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any the Collateral if compliance with such provision is a condition Agent's instructions. Each Grantor agrees to attachment, perfection or priority of, or ability mark its books and rec▇▇▇▇ to reflect the security interest of the Administrative Collateral Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent shall reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness, no Borrower shall change perfection and priority of its namesecurity interests in the Collateral hereunder, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights and Copyright Licenses, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Exhibit 5(c)(i) attached hereto, (iiiC) deposit accounts specially with regard to Patents and exclusively used Patent Licenses, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Exhibit 5(c)(ii) attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office and Trademark Licenses, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(c)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (including authorization to describe the attachment, perfection and first priority of, and the ability Collateral as “all assets” or words of the Administrative Agent to enforce, similar meaning) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations (other than contingent indemnification obligations for which no claim has been asserted) remain unpaid and until the Commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the LendersSecured Parties, (3) complying with any provision of any statute, regulation or treaty of subject to the United States as Administrative Agent’s instructions. Each Grantor agrees to any Collateral if compliance with such provision is a condition ▇▇▇▇ its books and records to attachment, perfection or priority of, or ability reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Veracyte, Inc.)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A 9 of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A 9 of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurredoccurred and is continuing, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000500,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurredoccurred and is continuing, deposit accounts which in the aggregate hold funds not in excess of $100,000500,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurredoccurred and is continuing, financial assets with an aggregate value not in excess of $100,000500,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurredoccurred and is continuing, to goods with an aggregate book value not in excess of $100,000500,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurredoccurred and is continuing, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000500,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurredoccurred and is continuing, to letters of credit with an aggregate face value not in excess of $100,000500,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurredoccurred and is continuing, to commercial tort claims with an aggregate value not in excees excess of $100,000500,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurredoccurred and is continuing, to Intellectual Property with an aggregate value not in excess of $100,000500,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Loan and Security Agreement (Global Defense Technology & Systems, Inc.)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent of its rights and interests hereunder. To that if no Default end, each Grantor authorizes the Administrative Agent to file one or Event more financing statements (with collateral descriptions broader and/or less specific than the description of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(dthe Collateral contained herein) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at disclosing the Administrative Agent’s request's security interest in any or all of the Collateral of such Grantor without such Grantor's signature thereon, pursuant to an agreement in form and substance reasonably satisfactory to further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, cause the depositary bank to agree to comply at its nominee or any time during the continuation of an Event of Default with instructions from other Person whom the Administrative Agent may designate, as such Grantor's attorney-in-fact with full power and for the limited purpose to such depositary bank directing sign in the disposition of funds from time to time credited to such deposit account, without further consent name of such BorrowerGrantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. The Administrative Agent Each Grantor hereby agrees with each Borrower that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent shall not give any without notice thereof to such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and Grantor wherever the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, may in its sole discretion desire to file the depositary bank and same. In the Administrative Agent event for any reason the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit law of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds any jurisdiction other than funds North Carolina becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securitiesSecured Obligations, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign Grantor agrees to execute and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time in its sole discretion reasonably deems necessary, appropriate or convenient to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated preserve, protect and are issued to such Borrower or its nominee directly by enforce the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, a Grantor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request execute any and all such requested documents on behalf of such Grantor pursuant to vest the power of attorney granted hereinabove). If any Collateral is in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper possession or control under Section 201 of the Federal Electronic Signatures in Global a Grantor's agents and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrangeso requests, pursuant such Grantor agrees to procedures satisfactory to the Administrative Agent and so long as notify such procedures will not result agents in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request writing of the Administrative Agent's security interest therein and, upon the Administrative Agent's request, instruct them to hold all such Borrower shall, pursuant to an agreement in form Collateral for the account of the holders of the Secured Obligations and substance reasonably satisfactory subject to the Administrative Agent, arrange for 's instructions. Each Grantor agrees to mark its books and records to reflect the issuer and any confirmer security interest of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of Schedule 4(f)(i), (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 4(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 4(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document or any Letter of Credit shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Obligor agrees to mark ▇▇▇ books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Fresh Foods Inc)
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate
(i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdictionAgent its security interests hereunder, or (ii) as being of an equal or lesser scope or with greater detailincluding, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower andbut not limited to, (iiA) in the case of a such financing statement filed statements (including renewal statements) or amendments thereof or supplements thereto or other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights that if no Default or Event would constitute Material Intellectual Property, a Notice of Default has occurred, provisions Grant of this paragraph shall not apply to promissory notes and tangible chattel paper Security Interest in such Copyrights for filing with an aggregate face value of not greater than $100,000.
(d) For each deposit account that the United States Copyright Office a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative AgentCollateral Agent (C) with regard to Patents that would constitute Material Intellectual Property, cause the depositary bank to agree to comply at any time during the continuation a Notice of an Event Grant of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect Security Interest in such jurisdiction, of such transferable record. The Administrative Agent agrees Patents for filing with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify Office in a form 10 satisfactory to the Administrative Agent thereofCollateral Agent, and if required by (D) with regard to Trademarks that would constitute Material Intellectual Property, a Notice of Grant of Security Interest in such Trademarks for filing with the Administrative Agent, shall execute United States Patent and deliver Trademark Office in a form satisfactory to the Administrative Collateral Agent an Intellectual Property Assignment with respect thereto (ii) to consummate the transactions contemplated hereby and shall cause such Intellectual Property Assignment (iii) to be recorded in such officeotherwise protect and assure the Collateral Agent of its rights and interests hereunder. The provisions of this paragraph shall not applyTo that end, if no Default each Obligor agrees that the Collateral Agent may file one or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by more financing statements disclosing the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Collateral Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon; provided that the Collateral Agent will provide a notice to the appropriate Obligor of any of the foregoing within 10 days of the execution, delivery and filing, if any, that thereof and will promptly thereafter provide copies of any of the foregoing executed and delivered by the Collateral Agent, including, if received by the Collateral Agent, acknowledgment copies of any financing statements as filed. Furthermore, each Obligor hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other person whom the Collateral Agent may designate, as such Borrower’s signature thereon Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Collateral Agent's reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the security interests granted hereunder. The power of attorney granted hereunder is required therefor, (2) causing the Administrative Agent’s name to be noted coupled with an interest and is and shall remain irrevocable so long as the Lender on Credit Agreement is in effect (other than any certificate obligations with respect to the indemnities and the representations and warranties set forth in the Credit Documents which shall survive the termination of title for a titled good if such notation is a condition to attachmentthe Credit Documents) or any amounts payable thereunder, perfection under any other Credit Document or priority ofHedging Agreement, or ability under any Letter of Credit shall remain outstanding, and until all of the Administrative Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without notice thereof to enforcesuch Obligor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Administrative Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (and, if an Obligor shall fail to do so promptly upon the request of the Collateral Agent’s , then the Collateral Agent may execute any and all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Collateral Agent so requests, such Obligor agrees to notify such agents in writing of the Collateral Agent's security interest in therein and, upon occurrence and continuance of an Event of Default, upon the Collateral Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental ' account and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory subject to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionCollateral Agent's instructions.
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Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request. Each Borrower also ratifies its authorization for the Administrative Agent to have filed in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an a control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, continuing or would occuroccur as a result thereof. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, and (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods with an aggregate book value in excess of $250,000 are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claimclaim in excess of $100,000, that Borrower shall immediately promptly notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a required by the Administrative Agent, each Borrower at any time holds that owns any Intellectual Property that is registered with the Register of Copyrights or the United States Patent and Trademark Office or the United States Copyright Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause record such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not applywith the United States Patent and Trademark Office and the United States Copyright Office, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000as applicable.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(f)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (which may describe the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, collateral as “all assets” or “all personal property”) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenderssuch Grantor any such amendments and supplements, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of title for a titled good if such notation any jurisdiction other than New York becomes or is a condition applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral of a Grantor is in the possession or control of such Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit ac count of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Administrative Agent’s instructions. Each Grantor agrees to attachment, perfection or priority of, or ability m▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State Agent its security interests hereunder, including: (A) such financing statements (including renewal statements) or such jurisdiction, amendments thereof or (ii) supplements thereto or other instruments as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided that if no Default or Event (B) with regard to Copyrights, a Notice of Default has occurredGrant of Security Interest in Copyrights in the form of Schedule 4.6(i), provisions (C) with regard to Patents, a Notice of this paragraph shall not apply Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 4.6(ii) attached hereto and (D) with regard to promissory notes Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and tangible chattel paper with an aggregate face value Trademark Office in the form of not greater than $100,000.
(dSchedule 4.6(iii) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinattached hereto, (ii) deposit accounts for which to consummate the Administrative Agent is the depositary, transactions contemplated hereby and (iii) deposit accounts specially to otherwise protect and exclusively used for payrollassure the Collateral Agent of its rights and interests hereunder, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employeesincluding, without limitation: (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (vA) if no Default any Account, Contract, Chattel Paper, Instrument, General Intangible and each Patent License and Trademark License shall be evidenced by a promissory note or Event of Default has occurredother instrument or chattel paper, deposit accounts which in delivering and pledging to the aggregate hold funds Collateral Agent hereunder, to the extent not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securitiesrequired to be delivered and pledged under the Permitted Senior Debt, such Borrower shallnote, upon the Administrative Agent’s written request therefor, forthwith endorse, assign instrument or chattel paper duly endorsed and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such executed instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereofassignment, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Collateral Agent. The provisions of this paragraph shall not apply, if no Default (B) filing such financing or Event of Default has occurredcontinuation statements, or amendments thereto, as may be necessary or desirable or that the Collateral Agent may request in order to commercial tort claims with an aggregate value not perfect and preserve the security interest purported to be created hereby, and (C) furnishing to the Collateral Agent from time to time statements and schedules further identifying and describing the Collateral and such other reports in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered connection with the Register of Copyrights or Collateral as the United States Patent and Trademark OfficeCollateral Agent may reasonably request, as applicable, all in reasonable detail. To that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforceend, the Administrative Company agrees that the Collateral Agent may file one or more financing statements disclosing the Collateral Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial CodeCompany without, to the extentextent permitted by law, the Company's signature thereon, and further the Company also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other person whom the Collateral Agent may designate, as the Company's attorney in fact with full power and for the limited purpose to sign in the name of the Company any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Collateral Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Securities Purchase Agreement and the Notes are in effect or any amounts payable thereunder or under any other Transaction Document shall remain outstanding. The Company hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without notice thereof to the Company wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than the State of New York becomes or is applicable to the Collateral of the Company or any part thereof, or to any of the Secured Obligations, the Company agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Collateral Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name Company shall fail to be noted as do so promptly upon the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Collateral Agent, then the Collateral Agent may execute any and all such requested documents on behalf of the Company pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of the Company's agent and the agent so requests, the Administrative Agent’s Company agrees to notify such agent in writing of the agent's security interest in therein and, upon the agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Purchasers' account and subject to the Collateral Agent's instructions. The Company agrees to m▇▇▇ its books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Collateral Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organizationfinancing statements (including renewal statements), the type of organization amendments and any organization identification number issued to supplements or such Borrower and, (ii) in the case of a financing statement filed other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Exhibit 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that if no Default end, each Grantor agrees that the Collateral Agent may file one or Event more financing statements (with collateral descriptions broader and/or less specific than the description of Default has occurredthe Collateral contained herein) disclosing the Collateral Agent’s security interest in any or all of the Collateral of such Grantor without such Grantor’s signature thereon, provisions and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Collateral Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this paragraph shall not apply Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without notice thereof to promissory notes and tangible chattel paper with an aggregate face value such Grantor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of not greater any jurisdiction other than $100,000.
(d) For each deposit account that a Borrower at the applicable jurisdiction as of the Closing Date becomes or is applicable to the Collateral of any time opens Grantor or maintainsany part thereof, or to any of the Secured Obligations, such Borrower shallGrantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its reasonable discretion deems necessary, at appropriate or convenient to preserve, protect and enforce the Administrative security interests of the Collateral Agent under the law of such other jurisdiction (and, if a Grantor shall fail to do so promptly upon the request of the Collateral Agent’s request, then the Collateral Agent may execute any and all such requested documents on behalf of such Grantor pursuant to an agreement in form the power of attorney granted hereinabove). After the occurrence and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from Default, if any Collateral is in the Administrative Agent to such depositary bank directing the disposition possession or control of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank Grantor’s agents and the Administrative Collateral Agent have entered into a cash collateral agreement specially negotiated among so requests, such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments Grantor agrees to or for the benefit of notify such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds agents in writing of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shallCollateral Agent’s security interest therein and, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant instruct them to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds hold all such Collateral for the benefit account of the Administrative Agent and shall act upon the instructions holders of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement Secured Obligations and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect subject to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Collateral Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000instructions.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization including (A) such financing statements (including renewal statements) or amendments thereof or supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of Schedule 6(f)(i) attached hereto, (iiiC) deposit accounts specially with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United, States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivSchedule 6(f)(ii) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event with regard to Trademarks, a Notice of Default has occurred, deposit accounts which Grant of Security Interest in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral Trademarks for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 6(f)(iii) attached hereto, as applicable, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, and if required by the Administrative Agent, shall execute and deliver to each Loan Party agrees that the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default may file one or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, more financing statements disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Loan Party without, to the extent permitted by law, such Loan Party’s signature thereon, and further each Loan Party also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee, or any other person whom the Administrative Agent may designate, as such Loan Party’s attorney in fact with full power and for the ratable benefit limited purpose to sign in the name of such Loan Party on any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Administrative Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, includingsuch power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Loan Document, any Letter of Credit or any Hedging Agreement or any Loan shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Loan Party hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without limitationnotice thereof to such Loan Party wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than Georgia becomes or is applicable to the Collateral of any Loan Party or any part thereof, or to any of the Secured Obligations, such Loan Party agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Administrative Agent under the law of such other jurisdiction (1) executing, delivering and, where appropriateif a Loan Party shall fail to do so promptly upon the request of the Administrative Agent, filing financing statements then the Administrative Agent may execute any and amendments relating thereto under all such requested documents on behalf of such Loan Party pursuant to the Uniform Commercial Codepower of attorney granted hereinabove). If any Collateral is in the possession or control of a Loan Party’s agent and the Administrative Agent so requests, such Loan Party shall use commercially reasonable efforts to obtain such Landlord Waivers and Bailee’s Letters as, and to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing of Borrowers under the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdictionCredit Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Delek US Holdings, Inc.)
Perfection of Security Interest. Execute and deliver to the Administrative Agent such agreements, assignments or instruments (aincluding affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (i) to assure to the Administrative Agent the effectiveness and priority of its security interests in the Collateral hereunder, including (A) such instruments as the Administrative Agent may from time to time reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Exhibit 5(B) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Schedule 5(C) attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Office and Trademarks for which a registration is pending or is otherwise applied for with the United States Patent and Trademark Office, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(D) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent of its rights and interests hereunder. Each Borrower Grantor hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, Agent at any time and from time to time to file in any Uniform Commercial Code relevant jurisdiction in the United States any initial financing statements and (including any continuations), amendments thereto that (1) indicate the Collateral or other documents (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in that contain the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A 9 of the Uniform Commercial Code UCC of the State or each such applicable jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentamendment relating to the Collateral, including (i) including, without limitation, whether such Borrower Grantor is an organization, the type of organization and any organization organizational identification number issued to such Borrower andGrantor, (ii) without the signature of such Grantor where permitted by law, (iii) that contain a description or indication of collateral as “all assets now owned or hereafter acquired by the Grantor or in which Grantor otherwise has rights” or “all personal property of the debtor, now owned or hereafter acquired” or words of similar import or (iv) that contain a sufficient description of the real property to which such Collateral relates and any other information requested by Administrative Agent in the case of a financing statement filed as a fixture filing or indicating covering Collateral as as-constituting minerals or the like to be extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower Grantor agrees to furnish any such provide all information described in the immediately preceding sentence to the Administrative Agent promptly upon request.
reasonable request by Administrative Agent and, if required, to execute any such financing statements (bincluding any continuations) Without providing at least 10 days’ prior written notice to or amendments thereto. In addition, each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization nominee or any other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such organizational identification number.
Grantor any such financing statements (c) If a Borrower shall at including renewal statements), continuations, amendments and supplements, notices or any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to similar documents that in the Administrative Agent, for the ratable benefit ’s reasonable discretion would be necessary or appropriate in order to perfect and maintain perfection of the Lenderssecurity interests granted hereunder, accompanied such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments of transfer or assignment duly executed in blank and to do all such other things as the Administrative Agent may from time reasonably deems necessary or appropriate to time specifypreserve, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes protect and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at enforce the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit security interests of the Administrative Agent and shall act upon under the instructions of the Administrative Agent, without the further consent law of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not applyother jurisdiction (and, if no Default or Event of Default has occurred, a Grantor shall fail to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall do so promptly notify the Administrative Agent thereof and, at upon the request of the Administrative Agent, shall take such action as then the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, execute any and all such requested documents on behalf of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, Grantor pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss power of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for attorney granted hereinabove). If any Collateral with a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book fair market value not in excess of $100,000.
(h) If 500,000 is in the possession or control of a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement Grantor’s agents and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not applyso requests, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further Grantor agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability notify such agents in writing of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering therein and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing upon the Administrative Agent’s name request, instruct them to be noted as hold all such Collateral for the Lender on any certificate account of title for a titled good if such notation is a condition the holders of the Secured Obligations and subject to attachment, perfection or priority of, or ability the Administrative Agent’s instructions. Each Grantor agrees (and agrees to cause each of its direct and indirect Domestic Subsidiaries) to ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent in the Collateral. Notwithstanding the foregoing, (i) no Grantor shall be required to enforce, take any action to perfect the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, in any motor vehicles or other Equipment covered by certificate of title laws in any applicable jurisdiction or other personal Property in respect of which perfection of a Lien is not accomplished by the Administrative Agent’s security interest in such Collateral, held for the ratable benefit filing of a UCC financing statement under Article 9 of the LendersUCC and (ii) except as set forth in Section 5(d) below and in the Pledge Agreement, (4) obtaining governmental and other third party consents and approvals, including without limitation no Grantor shall be required to take any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory action to provide to the Administrative Agent and (6) taking all actions required by any earlier versions control within the meaning of the Uniform Commercial Code or by other lawUCC with respect to Deposit Accounts, as applicable in any relevant Uniform Commercial Code jurisdictionSecurity Accounts, or by other law as applicable in any foreign jurisdictionCommodities Accounts, Investment Property, Letter of Credit Rights and Electronic Chattel Paper.
Appears in 1 contract
Perfection of Security Interest. Execute and deliver to the Agent ------------------------------- such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which the Administrative Agent is the depositarywith regard to Copyrights, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit a Notice of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds Grant of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which Security Interest in Copyrights in the aggregate hold funds not form of Schedule 4(f)(i), ---------------- (C) with regard to Patents, a Notice of Grant of Security Interest in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral Patents for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 4(f)(ii) attached hereto and (D) with regard to ----------------- Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule -------- 4(f)(iii) attached hereto, (ii) to consummate the transactions contemplated --------- hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s =s security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document or any Letter of Credit shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than any jurisdiction, the laws of which are applicable to the Collateral on the Closing Date, becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's further instructions. Each Obligor agrees to ▇▇▇▇ its books and records to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (National Equipment Services Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, Company shall execute and deliver to the Administrative Collateral Agent, at any time or times after the Company’s execution of this Agreement (and pay the cost of filing or recording same in all public offices deemed necessary by Collateral Agent), all financing statements, assignments, certificates of title, applications for vehicle titles, affidavits, reports, notices, schedules of Accounts, designations of inventory, letters of authority and all other documents that Collateral Agent an Intellectual Property Assignment with respect thereto may reasonably request, in form satisfactory to the Collateral Agent, to perfect and shall cause such Intellectual Property Assignment to be recorded maintain the Collateral Agent’s perfected security interests in such officethe Collateral. The provisions of this paragraph shall not applyCompany further agrees, if no Default or Event of Default has occurred, from time to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably time as requested by the Administrative Collateral Agent, to execute and deliver to the Collateral Agent any Patent Security Agreements, Trademark Security Agreements or any other documents necessary or advisable to insure perfect the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Collateral Agent’s security interest in any Intellectual Property, and further authorizes Collateral Agent, its agents, attorneys, and representatives upon notice to Company, to file such agreements or documents, and amendments thereto, at the Company’s expense, in the office of the appropriate governmental agency. In addition, the Company irrevocably authorizes Collateral Agent, its agents, attorneys, and representatives, to file financing statements, and amendments thereto, at the Company’s expense, necessary to establish and maintain Collateral Agent’s perfected security interest in the Collateral. Any such financing statement to be filed may describe the assets and property to be encumbered hereby in a generic description such as “all assets of the debtor,” or words of similar effect. In order to fully consummate all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforcetransactions contemplated hereunder, the Administrative Company shall make appropriate entries on its books and records disclosing Collateral Agent’s security interest interests in such the Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (BioPharmX Corp)
Perfection of Security Interest. Execute and deliver to the Collateral Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1) indicate and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary, appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within Agent the scope effectiveness and priority of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentits security interests hereunder, including (iA) whether such Borrower is an organizationfinancing statements (including renewal statements), the type of organization amendments and any organization identification number issued to supplements or such Borrower and, (ii) in the case of a financing statement filed other instruments as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specifyreasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, provided (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the United States Copyright Office in the form of Exhibit 5(f)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. To that if no Default end, each Grantor agrees that the Collateral Agent may file one or Event more financing statements (with collateral descriptions broader and/or less specific than the description of Default has occurredthe Collateral contained herein or describing Collateral as “all assets” or words of similar effect) disclosing the Collateral Agent’s security interest in any or all of the Collateral of such Grantor without such Grantor’s signature thereon, provisions and further each Grantor also hereby irrevocably makes, constitutes and appoints the Collateral Agent, its nominee or any other Person whom the Collateral Agent may designate, as such Grantor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Collateral Agent’s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this paragraph shall not apply Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Collateral Agent without notice thereof to promissory notes and tangible chattel paper with an aggregate face value such Grantor wherever the Collateral Agent may in its sole discretion desire to file the same. In the event for any reason the law of not greater any jurisdiction other than $100,000.
(d) For each deposit account that a Borrower at the applicable jurisdiction as of the Closing Date becomes or is applicable to the Collateral of any time opens Grantor or maintainsany part thereof, or to any of the Obligations, such Borrower shallGrantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its reasonable discretion deems necessary, at appropriate or convenient to preserve, protect and enforce the Administrative security interests of the Collateral Agent under the law of such other jurisdiction (and, if a Grantor shall fail to do so promptly upon the request of the Collateral Agent’s request, then the Collateral Agent may execute any and all such requested documents on behalf of such Grantor pursuant to an agreement in form the power of attorney granted hereinabove). After the occurrence and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from Default, if any Collateral is in the Administrative Agent to such depositary bank directing the disposition possession or control of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank Grantor’s agents and the Administrative Collateral Agent have entered into a cash collateral agreement specially negotiated among so requests, such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth therein, (ii) deposit accounts for which the Administrative Agent is the depositary, (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments Grantor agrees to or for the benefit of notify such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds agents in writing of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shallCollateral Agent’s security interest therein and, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant instruct them to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds hold all such Collateral for the benefit account of the Administrative Agent and shall act upon the instructions holders of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement Obligations and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect subject to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Collateral Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000instructions.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark Office, as applicable, that Borrower shall promptly notify the Administrative Agent thereof, and if required by the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in any and all of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that such Borrower’s signature thereon is required therefor, (2) causing the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Ticketmaster Entertainment, Inc.)
Perfection of Security Interest. Execute and deliver to the Agent such agreements, assignments or instruments (a) Each Borrower hereby irrevocably authorizes the Administrative Agentincluding affidavits, for the ratable benefit of the Lendersnotices, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements reaffirmations and amendments thereto that (1and restatements of existing documents, as the Agent may reasonably request) indicate and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in to assure to the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendmentAgent its security interests hereunder, including (iA) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, financing statements (iiincluding renewal statements) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral amendments thereof or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information to the Administrative Agent promptly upon request.
(b) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization supplements thereto or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts for which with regard to Material Copyrights, a Notice of Grant of Security Interest in Copyrights in the Administrative Agent is the depositaryform of Schedule 4(f)(i), (iiiC) deposit accounts specially and exclusively used with regard to Material Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice in the form of Schedule 4(f)(ii) attached hereto and (D) with regard to Material Trademarks, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 4(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Agent of its rights and interests hereunder. To that Borrower shall promptly notify end, each Obligor agrees that the Administrative Agent thereof, and if required by may file one or more financing statements disclosing the Administrative Agent, shall execute and deliver to the Administrative Agent an Intellectual Property Assignment with respect thereto and shall cause such Intellectual Property Assignment to be recorded in such office. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by the Administrative Agent to insure the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, the Administrative Agent’s 's security interest in any and or all of the Collateral, for the ratable benefit Collateral of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Codesuch Obligor without, to the extentextent permitted by law, such Obligor's signature thereon, and further each Obligor also hereby irrevocably makes, constitutes and appoints the Agent, its nominee or any other person whom the Agent may designate, as such Obligor's attorney in fact with full power and for the limited purpose to sign in the name of such Obligor any such financing statements, or amendments and supplements to financing statements, renewal financing statements, notices or any similar documents which in the Agent's reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Credit Agreement is in effect or any amounts payable thereunder or under any other Credit Document or any Letter of Credit shall remain outstanding, and until all of the Commitments thereunder shall have terminated. Each Obligor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any such financing statement is sufficient for filing as a financing statement by the Agent without notice thereof to such Obligor wherever the Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than North Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to do all such other things as the Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Agent under the law of such other jurisdiction (and, if any, that such Borrower’s signature thereon is required therefor, (2) causing an Obligor shall fail to do so promptly upon the Administrative Agent’s name to be noted as the Lender on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability request of the Administrative Agent, then the Agent may execute any and all such requested documents on behalf of such Obligor pursuant to enforcethe power of attorney granted hereinabove). If any Collateral is in the possession or control of an Obligor's agents and the Agent so requests, such Obligor agrees to notify such agents in writing of the Administrative Agent’s 's security interest in therein and, upon the Agent's request, instruct them to hold all such Collateral, held Collateral for the ratable benefit Lenders' account and subject to the Agent's instructions. Each Obligor agrees to mark its books and reco▇▇▇ to reflect the security interest of the Lenders, (3) complying with any provision of any statute, regulation or treaty of Agent in the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes Execute, acknowledge, deliver, record, re-record, file, re-file, register, re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative AgentAgent may reasonably require, for the ratable benefit of the Lendersdeem necessary, at any time and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral appropriate or convenient (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information assure to the Administrative Agent promptly upon request.the effectiveness and priority of its security interests hereunder, including, without limitation,
5.01 (a)(iii) - 6
(bA) Without providing at least 10 days’ prior written notice to the Administrative Agent, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
(c) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default reasonably request in order to perfect and maintain the security interests granted hereunder or Event under any of Default has occurred, provisions of this paragraph shall not apply to promissory notes and tangible chattel paper the Collateral Documents in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to United States registered Copyrights, a Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office substantially in the depositaryform of Schedule 5(c)(i) attached hereto, (iiiC) deposit accounts specially and exclusively used with regard to United States Patents, a Notice of Grant of Security Interest in Patents for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such Borrower’s salaried employees, (iv) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, and (v) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default filing with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property registered with the Register of Copyrights or the United States Patent and Trademark OfficeOffice substantially in the form of Schedule 5(c)(ii) attached hereto, (D) with regard to United States Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office substantially in the form of Schedule 5(c)(iii) attached hereto, and (E) with regard to Foreign IP Assets, after the occurrence and during the continuance of an Event of Default, such instruments as applicable, that Borrower shall promptly notify the Administrative Agent thereofor the Required Lenders may from time to time reasonably request in order to perfect and maintain the security interest granted hereunder in accordance with the Laws of the applicable foreign jurisdictions, (ii) to consummate the transactions contemplated hereby (iii) correct any material defect or error that may be discovered in this Security Agreement or any of the Collateral Documents or in the execution, acknowledgment, filing or recordation thereof and if required by the Administrative Agent, shall execute (iv) to otherwise protect and deliver to assure the Administrative Agent an Intellectual Property Assignment with respect thereto of its rights and shall cause such Intellectual Property Assignment to be recorded in such officeinterests hereunder. The provisions of this paragraph shall not applyTo that end, if no Default or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested by each Grantor authorizes the Administrative Agent to insure file one or more financing statements (which may describe the attachment, perfection and first priority of, and the ability of the Administrative Agent to enforce, collateral as “all assets” or “all personal property”) disclosing the Administrative Agent’s security interest in any and or all of the CollateralCollateral of such Grantor without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full power and for the ratable benefit limited purpose to sign in the name of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing such Grantor any such financing statements (including renewal statements), amendments and amendments relating thereto under the Uniform Commercial Codesupplements, to the extent, if any, notices or any similar documents that such Borrower’s signature thereon is required therefor, (2) causing in the Administrative Agent’s name reasonable discretion would be necessary, appropriate or convenient in order to be noted perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Lender on Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any certificate such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Grantor wherever the Administrative Agent may in its sole discretion desire to file the same. In the event for any reason the Laws of title for a titled good if such notation is a condition any jurisdiction other than New York become or are applicable to attachment, perfection the Collateral of any Grantor or priority ofany part thereof, or ability to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Administrative Agent under the Laws of such other jurisdiction (and, if a Grantor shall fail to enforcedo so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of such Grantor’s agents and the Administrative Agent so requests, such Grantor agrees to notify such agents in writing of the Administrative Agent’s security interest in therein and, upon the Administrative Agent’s request, instruct them to hold all such Collateral, held Collateral for the ratable benefit account of the Lenders, (3) complying with any provision of any statute, regulation or treaty holders of the United States as Secured Obligations and subject to any Collateral if compliance with such provision is a condition the Administrative Agent’s instructions. Such Grantor agrees to attachment, perfection or priority of, or ability ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Ipayment Inc)
Perfection of Security Interest. (a) Each Borrower hereby irrevocably authorizes the Administrative Agent, for the ratable benefit of the Lenders, at any time Execute and from time to time to file in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all assets of such Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9A of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9A of the Uniform Commercial Code of the State or such jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Borrower is an organization, the type of organization and any organization identification number issued to such Borrower and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Borrower agrees to furnish any such information deliver to the Administrative Agent promptly upon such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request.
) and do all such other things as the Administrative Agent may reasonably deem necessary, appropriate or convenient (bi) Without providing at least 10 days’ prior written notice to assure to the Administrative AgentAgent the effectiveness and priority of its security interests hereunder, no Borrower shall change its name, its type of organization, jurisdiction of organization or other legal structure, its principal place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one. If a Borrower does not have an organizational identification number and later obtains one, such Borrower shall forthwith notify the Administrative Agent of such organizational identification number.
including (cA) If a Borrower shall at any time hold or acquire any promissory notes or tangible chattel paper as part of the Collateral, such Borrower shall forthwith endorse, assign and deliver the same to the Administrative Agent, for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify, provided that if no Default or Event of Default has occurred, provisions of this paragraph shall not apply reasonably request in order to promissory notes perfect and tangible chattel paper maintain the security interests granted hereunder in accordance with an aggregate face value of not greater than $100,000.
(d) For each deposit account that a Borrower at any time opens or maintains, such Borrower shall, at the Administrative Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depositary bank to agree to comply at any time during the continuation of an Event of Default with instructions from the Administrative Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of such Borrower. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions or withhold any withdrawal rights from such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any withdrawal not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any deposit account for which a Borrower, the depositary bank and the Administrative Agent have entered into a cash collateral agreement specially negotiated among such Borrower, the depositary bank and the Administrative Agent for the specific purpose set forth thereinUCC, (iiB) deposit accounts with regard to Copyrights registered in the United States, a Notice of Grant of Security Interest in Copyrights for which filing with the Administrative Agent is United States Copyright Office in the depositaryform of Schedule 5(d)(i) attached hereto, (iiiC) deposit accounts specially with regard to Patents registered in the United States, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for Trademark Office in the benefit form of such Borrower’s salaried employees, (ivSchedule 5(d)(ii) deposit accounts for which such Borrower is acting as an agent to distribute funds other than funds of the Borrower to a third party, attached hereto and (vD) if no Default or Event of Default has occurred, deposit accounts which in the aggregate hold funds not in excess of $100,000.
(e) If a Borrower shall at any time hold or acquire any certificated securities, such Borrower shall, upon the Administrative Agent’s written request therefor, forthwith endorse, assign and deliver the same with regard to the Administrative Agent to be held as Collateral for the ratable benefit of the Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify. If any securities now or hereafter acquired by a Borrower are uncertificated and are issued to such Borrower or its nominee directly by the issuer thereof, that Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the issuer to agree to comply during the continuation of an Event of Default with instructions from the Administrative Agent as to such securities, without further consent of such Borrower or such nominee. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by a Borrower are held by such Borrower or its nominee through a securities intermediary or commodity intermediary, such Borrower shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request, pursuant to a securities control agreement in form and substance reasonably satisfactory to the Administrative Agent, cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply during the continuation of an Event of Default with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of such Borrower or such nominee. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Borrower, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. The provisions of this paragraph shall not apply to (i) any financial assets credited to a securities account for which the Administrative Agent is the securities intermediary, and (ii) if no Default or Event of Default has occurred, financial assets with an aggregate value not in excess of $100,000.
(f) If any goods are at any time in the possession of a bailee, each Borrower shall promptly notify the Administrative Agent thereof and, if requested by the Administrative Agent, shall promptly obtain an acknowledgement from the bailee, in form and substance reasonably satisfactory to the Administrative Agent, that the bailee holds such Collateral for the benefit of the Administrative Agent and shall act upon the instructions of the Administrative Agent, without the further consent of such Borrower, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such bailee refuses to provide such acknowledgement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The Administrative Agent agrees with each Borrower that the Administrative Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to the bailee. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to goods with an aggregate book value not in excess of $100,000.
(g) If a Borrower at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent, for the ratable benefit of the Lenders, control, under §9-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, §16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with each Borrower that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for such Borrower to make alterations to the electronic chattel paper or transferable record permitted under UCC §9-105 or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce ▇▇▇ ▇▇ §▇▇ of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Borrower with respect to such electronic chattel paper or transferable record. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to electronic chattel paper and transferable records with an aggregate book value not in excess of $100,000.
(h) If a Borrower is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Borrower, that Borrower shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, such Borrower shall, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent, for the ratable benefit of the Lenders, during the continuation of an Event of Default of the proceeds of any drawing under the letter of credit, with the Administrative Agent agreeing that the proceeds of any drawing under the letter to credit are to be applied to the payment of the Obligations, for the ratable benefit of the Lenders, provided that such Borrower shall not be in violation of this requirement if, after such Borrower has exercised reasonably commercial efforts, such issuer refuses to provide such agreement and the Administrative Agent determines that the rights of the Lenders will not be materially impaired thereby. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to letters of credit with an aggregate face value not in excess of $100,000.
(i) If a Borrower shall at any time hold or acquire a commercial tort claim, that Borrower shall immediately notify the Administrative Agent in a writing signed by such Borrower of the brief details thereof and grant to the Administrative Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Administrative Agent. The provisions of this paragraph shall not apply, if no Default or Event of Default has occurred, to commercial tort claims with an aggregate value not in excees of $100,000.
(j) If a Borrower at any time holds any Intellectual Property Trademarks registered with the Register of Copyrights or United States Patent and Trademark Office and all applications for Trademarks filed with the United States Patent and Trademark Office, as applicablea Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Schedule 5(d)(iii) attached hereto, that Borrower shall promptly notify (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative Agent thereofof its rights and interests hereunder. To that end, each Grantor authorizes the Administrative Agent to file one or more financing statements (with collateral descriptions broader, including without limitation "all assets" and/or "all personal property" collateral descriptions, and/or less specific than the description of the Collateral contained herein) disclosing the Administrative Agent's security interest in any or all of the Collateral of such Grantor without such Grantor's signature thereon (provided that no such description shall be deemed to modify the description of Collateral in Section 2), and if required by further each Grantor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, shall execute and deliver to its nominee or any other Person whom the Administrative Agent may designate, as such Grantor's attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Agent's sole discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an Intellectual Property Assignment with respect interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto and shall cause such Intellectual Property Assignment to be recorded in such officehave been terminated. The provisions Each Grantor hereby agrees that a carbon, photographic or other reproduction of this paragraph shall not apply, if no Default Domestic Security Agreement or Event of Default has occurred, to Intellectual Property with an aggregate value not in excess of $100,000.
(k) Each Borrower further agrees to take any other action reasonably requested such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to insure such Grantor wherever the attachmentAdministrative Agent may in its sole discretion desire to file the same. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Grantor or any part thereof, perfection or to any of the Secured Obligations, such Grantor agrees to execute and first priority ofdeliver all such instruments and to do all such other things as the Administrative Agent in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the ability security interests of the Administrative Agent under the law of such other jurisdiction (and, if a Grantor shall fail to enforce, do so promptly upon the request of the Administrative Agent’s security interest in , then the Administrative Agent may execute any and all such requested documents on behalf of the Collateral, for the ratable benefit of the Lenders, including, without limitation, (1) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, such Grantor pursuant to the extentpower of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor's agents and the Administrative Agent so requests, if any, that such Borrower’s signature thereon is required therefor, (2) causing Grantor agrees to notify such agents in writing of the Administrative Agent’s name 's security interest therein and, upon the Administrative Agent's request, instruct them to be noted as hold all such Collateral for the Lender on any certificate account of title for a titled good if such notation is a condition the holders of the Secured Obligations and subject to attachment, perfection or priority of, or ability the Administrative Agent's instructions. Each Grantor agrees to ▇▇▇▇ its books and records to reflect the security interest of the Administrative Agent to enforce, in the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (3) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of the Administrative Agent to enforce, the Administrative Agent’s security interest in such Collateral, held for the ratable benefit of the Lenders, (4) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on Collateral, (5) obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Administrative Agent and (6) taking all actions required by any earlier versions of the Uniform Commercial Code or by other law, as applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.
Appears in 1 contract
Sources: Security Agreement (GFI Group Inc.)