Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”): (i) all Accounts; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein; (iii) all Chattel Paper; (iv) all Documents; (v) all Equipment; (vi) all General Intangibles; (vii) all Goods; (viii) all Instruments, including all Pledged Securities; (ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory; (x) all Investment Property; (xi) all Intellectual Property; (xii) all Pledged Collateral; (xiii) all Records and all books and records pertaining to the Collateral; (xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights; (xv) all Supporting Obligations; (xvi) all cash and cash equivalents; (xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing; (xviii) all other personal property whatsoever of such Grantor; and (xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. (b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations. (c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower. (d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower. (e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 4 contracts
Sources: Guarantee and Collateral Agreement, Guarantee and Collateral Agreement, Guarantee and Collateral Agreement (CDW Finance Corp)
Security Interest. (a) As security for To secure the prompt payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) and performance of the Loan Obligations (other than contingent obligations)its SPV Entity Guaranty, each Grantor SPV Entity hereby confirms the pledge pledges, mortgages, charges and grant assigns (by way of security) to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Purchasers and the other Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Purchasers and the other Secured Parties, a continuing security interest in all rightand lien upon, title or interest in or to any and all of the following undertaking, property and assets of such SPV Entity, whether now or hereafter owned, existing or arising and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in including the future may acquire any right, title or interest following (but excluding any Excluded Collateral, collectively, the “Pledged Collateral”):
): (i) all Accounts;
Unsold Receivables, (ii) all Related Security with respect to such Unsold Receivables, (iii) all Collections with respect to such Unsold Receivables, (iv) the Cash Collateral Account Lock-Boxes and Collection Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Collection Accounts and amounts on deposit therein, (v) all rights (but none of the obligations) of such SPV Entity under the applicable Purchase and Sale Agreement; (vi) all personal and fixture property or assets of such SPV Entity of every kind and nature including, in any event, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, documents of title, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all intangibles and general intangibles (including all payment intangibles) (each as defined in the Revolving Credit AgreementUCC or the PPSA, as applicable) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything Each SPV Entity confirms that value has been given by the Administrative Agent and the Secured Parties to such SPV Entity, that such SPV Entity has rights in its Pledged Collateral existing at the date of this Agreement, and that such SPV Entity and the Administrative Agent have not agreed to postpone the time for attachment of the security interests granted hereunder to any of the Pledged Collateral of such SPV Entity. The security interests granted hereunder with respect to the contrary in Pledged Collateral of each SPV Entity created by this Agreement shall have effect and be deemed to be effective whether or not the related Guaranteed Obligations of such SPV Entity under its SPV Entity Guaranty or any part thereof are owing or in existence before or after or upon the date of this Agreement. Neither the execution and delivery of this Agreement nor the provision of any financial accommodation by any Secured Party shall oblige any Secured Party to make any financial accommodation or further financial accommodation available to either SPV Entity or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act Person.
(or any other law, rule or regulationc) requiring separate financial statements of such subsidiary to be filed with the SEC The Administrative Agent (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties Parties) shall have, with respect to all the Pledged Collateral, and in accordance with addition to all the terms other rights and remedies available to the Administrative Agent (for the benefit of the Credit Agreement Secured Parties), all the rights and remedies of a secured party under any applicable UCC or PPSA or under this Agreement, including Section 9.01. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor SPV Entity hereby authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to describing the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral collateral covered thereby as “all of the debtor’s personal property or assets” of such Grantor or words of similar to that effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether notwithstanding that such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as wording may be necessary for broader in scope than the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained collateral described in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonAgreement.
Appears in 3 contracts
Sources: Receivables Purchase Agreement (NCR Atleos Corp), Receivables Purchase Agreement (NCR Corp), Receivables Purchase Agreement (NCR Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Notes Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all Goods;
(viiix) all Instruments, including all Pledged Securities;
(ixxi) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting ObligationsLetters of Credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorMoney; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset or any other Senior Secured Note Document, Excluded Security.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Notes Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties Agent (but only to the extent necessary to Notes Collateral Agent shall not be subject to such requirementrequired) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Sources: Pledge and Security Agreement, Pledge and Security Agreement (Avaya Inc), Pledge and Security Agreement (Avaya Inc)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Money, whether held in a Deposit Account or in the possession of the Administrative Agent;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInvestment Property;
(x) all Investment PropertyLetter of Credit Rights;
(xi) all Intellectual Property;
(xii) all Pledged CollateralCommercial Tort Claims described on Schedule V hereto, as updated from time to time;
(xiii) all Records and all books and records pertaining to the Collateralcash held in any Securities Account;
(xiv) all letters of credit under which such Grantor is books and Records pertaining to the beneficiary and Letter of Credit Rights;Article 9 Collateral; and
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle or any other Senior Secured Note Documentproperty covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any Excluded Equity Interests, (c) any Letter of Credit Rights, except to the Equity Interests extent a security interest therein can be perfected by the filing of Uniform Commercial Code financing statements, and other securities to the extent such Pledgor is not required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (d) any Pledgor’s right, title or interest in any lease, license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such lease, license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of or create a right of termination in favor of or require the consent of any direct other party thereto (other than such Pledgor), such lease, license, contract or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only agreement (other than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulationprinciples of equity), (e) requiring separate financial statements assets to the extent the granting of such subsidiary to a security interest therein would be filed with the SEC (prohibited or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted restricted by the SEC to require (or is replaced with another rule or regulation, or any other applicable law, rule or regulation is adopted, which would require) (including any requirement to obtain the filing with the SEC (or any other governmental agency) of separate financial statements consent of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests Governmental Authority), (f)(i) payroll and other securities secure employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) escrow accounts and (iv) fiduciary or other trust accounts, and, in the Senior Secured Notes and/or case of clauses (i) through (iv), the related guaranteesfunds or other property held in or maintained in such account, then (g) any Commercial Tort Claim with a value not in excess of $5.0 million, as determined in good faith by the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties Borrower, (but only h) any governmental licenses or State or local franchises, charters or authorizations, to the extent necessary security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby, after giving effect to not be subject to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction notwithstanding such requirementprohibition or restriction, (i) assets if the granting of a security interest therein would result in (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modifiedi) material adverse tax consequences (including, without limitation, as a result of the operation of Section 956 of the Code or any similar law or regulation in any applicable jurisdiction) or (ii) material adverse regulatory consequences, in each case as reasonably determined by the Borrower and with the consent of the Note TrusteeAdministrative Agent (which consent will not to be unreasonably withheld, delayed or conditioned), (j) those assets as to which the Collateral AgentAdministrative Agent and the Borrower reasonably agree in writing that any of the cost, difficulty, burden or consequences of obtaining such a security interest are excessive in relation to the benefit to the Lenders of the security to be afforded thereby, (k) any Senior Secured Note Holder United States “intent to use” trademark application or any holder intent-to-use service ▇▇▇▇ application filed pursuant to Section 1(b) of Other Pari Passu Lien Obligations, the ▇▇▇▇▇▇ Act to the extent necessary to release that the first-priority grant of a security interests interest therein would impair the validity or enforceability of, or render void or voidable or result in the shares cancellation of Equity Interests the applicable Pledgor’s right, title or interest therein or any trademark or service ▇▇▇▇ issues as a result of such application under applicable federal law, after which period such application shall be automatically subject to the security interest granted herein and other securities that are so deemed to no longer constitute part of be included in the Collateral securing the Note Collateral, (l) any assets and proceeds thereof subject to a Capital Lease Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms or a purchase money Lien permitted by Section 6.02(i) of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary the documents providing for such Capital Lease Obligation or purchase money Lien do not permit such assets and proceeds thereof to not be the pledged to the Administrative Agent and (m) any assets acquired after the date hereof subject to any a Lien permitted by Section 6.02(c) of the Credit Agreement that existed on such financial statement requirement). In assets at the time of the acquisition thereof and was not incurred in contemplation of such eventacquisition so long as the documents providing for such Lien do not permit such assets to be pledged to the Administrative Agent (the assets described in clauses (a) through (l) above, collectively, the Security Documents may be amended or modified, without “Excluded Assets”); provided that such exclusions shall not apply to the consent proceeds of any of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsforegoing property.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. As of the Closing Date, the filing jurisdictions for filing of each applicable Uniform Commercial Code financing statement is as set forth on Schedule IV. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Administrative Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Sources: Abl Guarantee and Collateral Agreement (CPG Newco LLC), Term Loan Guarantee and Collateral Agreement (CPG Newco LLC), Term Loan Guarantee and Collateral Agreement (CPG Newco LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case properties, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;Investment Property:
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(x) all Goods and Fixtures;
(xi) all Money, cash, cash equivalents, Deposit Accounts, Securities Accounts and Commodities Accounts;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims listed on Schedule III and any supplement thereto;
(xiv) the Collateral Account, and all letters of credit under which such Grantor is the beneficiary cash, Money, Securities and Letter of Credit Rightsother investments deposited therein;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalentsSecurity Entitlements in any or all of the foregoing;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that Article 9 Collateral shall not include, and the Security Interest shall not attach to, any of the following assets or property, each being an “Excluded Asset”:
(i) any asset (including any Equipment or Inventory owned by a Grantor that is subject to a Lien permitted under Section 7.01(i) of the Credit Agreement securing Indebtedness permitted under Section 7.03 of the Credit Agreement to finance or refinance such Equipment or Inventory) or any lease, license, franchise, charter, authorization, contract or agreement to which any Loan Party is a party, together with any rights or interest thereunder, in each case, if and to the extent security interests therein (x) are prohibited by or in violation of any applicable Law, (y) requires any governmental consent or consent of a third party that is not a Loan Party or an Affiliate of a Loan Party (to the extent the applicable Loan Party has used commercially reasonable efforts to obtain such consent) that has not been obtained or (z) in the case of any lease, license, franchise, charter, authorization, contract or agreement, is prohibited by or in violation of a term, provision or condition of any such lease, license, franchise, charter, authorization, contract or agreement to which such Grantor is a party, except, in the case of each of the foregoing clauses (x), (y) and (z), to the extent that such prohibition or restriction would be rendered ineffective under the UCC or other applicable Law or principle of equity; provided, however, that, notwithstanding the foregoing, the Collateral shall include (and the Security Interest shall attach) at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, shall attach to any portion of such asset, lease, license, franchise, charter, authorization, contract or agreement not subject to the prohibitions specified in clauses (x), (y) or (z) above; provided, further, that the Excluded Assets referred to in this clause (i) shall not include any Proceeds or receivables of any such asset, lease, license, franchise, charter, authorization, contract or agreement;
(ii) the Excluded Equity Interests;
(iii) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. § 1051, prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the ▇▇▇▇▇▇ Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the ▇▇▇▇▇▇ Act with respect thereto (it being understood that after such filing and acceptance such intent-to-use application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral);
(A) any leasehold interest (including any ground lease interest) in real property, (B) any fee interest in owned real property with a fair market value below $10,000,000 and (C) any Fixtures affixed to any real property to the extent (x) such Fixtures are affixed to any real property with a fair market value below $10,000,000 or (y) a security interest in such Fixtures may not be perfected by the filing of a UCC financing statement in the jurisdiction of organization of the applicable Grantor.
(v) (A) as extracted collateral, (B) timber to be cut, (C) farm products and (D) manufactured homes;
(vi) any particular asset, if the pledge thereof or the security interest therein would result in material adverse tax consequences to any Grantor as reasonably determined by the Borrower with notice in writing (which shall reasonably identify the basis for such determination) to the Administrative Agent;
(vii) any specifically identified asset with respect to which the Administrative Agent has determined (in its reasonable judgment) that the costs of obtaining, perfecting or maintaining a Security Interest or pledge in such asset exceed the fair market value thereof (as determined by the Borrower in its reasonable judgment) or the practical benefit to the Secured Parties afforded thereby;
(viii) Excluded Intercompany Debt; and
(ix) motor vehicles, aircraft and other assets subject to certificates of title or ownership (including, without limitation, aircraft, airframes, aircraft engines or helicopters, or any equipment or other assets constituting a part thereof, in each case to the extent subject to Federal Aviation Act registration requirements, and rolling stock; provided that if and when any property shall cease to be an Excluded Asset, a Lien on and security interest in such property shall be deemed granted therein and the provisions of this Agreement shall apply to such property, including the Proceeds of any General Intangible, Instrument, license, property right, permit or any other contract or agreement (except to the extent such Proceeds are an Excluded Assets). Notwithstanding anything to the contrary, the Proceeds of, or in respect of, any Excluded Assets shall constitute Article 9 Collateral (except to the extent such Proceeds are an Excluded Asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement including indicating the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further irrevocably authorized to file (to the extent the Grantors have not already made such filings) Intellectual Property Security Agreements, or supplement or amendments thereof, executed by the applicable Grantor(s) with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such offices). Without limiting the rights and remedies of the Collateral Agent arising under Applicable Law and under the Loan Documents, the Parties agree that in the event an Intellectual Property Security Agreement, or supplement or amendments thereof, is no longer a reasonably acceptable form of documentation to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor offices), as applicable, the authorization granted in the preceding sentence extends to any other documents as may be and actions reasonably necessary for the purpose of perfectingto evidence, confirmingrecord, continuing, enforcing confirm or protecting otherwise perfect the Security Interest granted by each Grantorin IP Collateral consisting of U.S. issued Patents, without U.S. registered Trademarks or U.S. registered Copyrights (and applications for any of the signature of any Grantor, and foregoing) naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The , but, except as provided under Article V hereof or under the Loan Documents, the Collateral Agent agrees, upon request by the Borrower and at the Borroweris not authorized to execute any such documents on any Grantor’s expense, to promptly furnish copies of such filings behalf (to the Borrowerextent such execution is necessary).
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Sources: Second Lien Security Agreement, Second Lien Security Agreement (Advantage Solutions Inc.), First Lien Security Agreement (Advantage Solutions Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) To secure all of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Merchant's present and grant future obligations to the Collateral AgentTransFirst, its successors Third-Party Sender, and permitted assigns the ODFI (TransFirst, its Third-Party Sender, and the ODFI are referred to as "Secured Party" for purposes of the security interest of the Original Guarantee and Collateral this Section 6.2) under this Agreement, for Merchant hereby grants to Secured Party liens and security interests in all of Merchant's rights to and interests in the ratable benefit of the Loan Secured Partiesfollowing, presently existing or hereafter acquired, and as security for the payment or performance, as the case may be, in full when due any interest earned thereon and proceeds thereof (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Collateral”):
"): (i) all Accounts;
the Reserve Account, (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cashSettlement Account, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
any deposit account now or hereafter maintained by Merchant with the Secured Party, (iv) all Documents;
any of Merchant's funds now or hereafter in the possession of the Secured Party, and (v) all Equipment;
amounts now or hereafter owing to Merchant under this Agreement. Each Secured Party is hereby authorized (vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsand any related notice and demand are hereby expressly waived), including all Pledged Securities;
(ix) all Inventory or documents of titleto set off, customs receipts, insurance certificates, shipping documents recoup and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records appropriate and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of apply any and all of the foregoing and all offspringssuch amounts owing, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Documentfunds held, the Equity Interests account balances and other securities Collateral against and on account of any direct Merchant's obligations under this Agreement, whether such obligations are liquidated, unliquidated, fixed, contingent matured or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency)unmatured. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements case of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case consisting of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file deposit account with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other financial institution, ▇▇▇▇▇▇▇▇ hereby agrees that Secured Party liable shall have control thereof and the depository will (and is hereby authorized to) comply with instructions originated by Secured Party directing disposition of funds in the deposit account without further consent by ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ agrees to duly execute and deliver to Secured Party such additional instruments, documents and agreements as a member may be reasonably requested to perfect and confirm the liens, security interests in deposit accounts and other Collateral set forth in this Agreement. ▇▇▇▇▇▇▇▇ agrees that Secured Party may file such financing statements in ▇▇▇▇▇▇▇▇'s name describing any or all of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any and take such other Secured Party by virtue of this Agreement or otherwise (except action as referred they may require in order to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personperfect their liens and security interests therein.
Appears in 3 contracts
Sources: Ach Terms and Conditions, Ach Terms and Conditions, Ach Terms and Conditions
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInstruments;
(x) all Investment Intellectual Property;
(xi) all Intellectual PropertyInventory;
(xii) all Investment Property other than the Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xiv) all minerals, oil, gas and As-Extracted Collateral;
(xv) all Supporting Obligations;books and records pertaining to the Article 9 Collateral; and
(xvi) all cash substitutions, replacements, accessions, products and cash equivalents;
proceeds (xviiincluding insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in any Credit Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) and the other provisions of the Credit Documents with respect to Collateral need not be satisfied with respect to (a) motor vehicles or other assets subject to certificates of title and commercial tort claims, (b) any assets over which the granting of security interests in such assets would be prohibited by an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof and was not created or made binding on the assets in contemplation or in connection with the acquisition of such assets (except in the case of assets owned on the Issue Date or acquired after the Issue Date with Indebtedness of the type permitted pursuant to Section 4.03(b)(iv) of the Indenture and any equivalent provision in any Other Second-Priority Lien Obligations Document), applicable law or regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, other Senior Secured Note Documentthan proceeds thereof, the Equity Interests and other securities assignment of any direct which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests security interests would require obtaining the consent of any governmental authority or would result in materially adverse tax consequences as reasonably determined by the Issuer in writing delivered to the Collateral Agent, (c) those assets with respect to which, in the reasonable judgment of the Applicable Agent and the Issuer, evidenced in writing delivered to the Agent, the costs or other securities consequences of obtaining or perfecting such a security interest are excessive in view of the benefits to be obtained by the Secured Parties therefrom, (d) any Letter of Credit Rights (other than to the extent a Lien thereon can secure the Senior Secured Notes and/or the guarantees be perfected by filing a customary financing statement), (e) any Excluded Securities, (f) any Pledgor’s right, title or interest in respect thereof without Rule 3-10 any license, contract or Rule 3-16 of Regulation S-X under the Securities Act (agreement to which such Pledgor is a party or any other lawof its right, rule title or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due interest thereunder to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent, that such a grant would violate the terms of applicable law or of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such license, contract or agreement to which such Pledgor is a party (other than to the extent necessary that any such term would be rendered ineffective pursuant to not Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or regulation (including the Bankruptcy Code) or principles of equity); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (g) any equipment or other asset owned by any Pledgor that is subject to a purchase money lien or a Capitalized Lease Obligation, in each case, as permitted under the Indenture and not prohibited by any other Credit Document, if the contract or other agreement in which such requirementLien is granted (or the documentation providing for such Capitalized Lease Obligation) prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted by under the Indenture and not prohibited by any other Credit Document, (h) any foreign collateral or credit support with respect to such foreign collateral (other than any such Equity Interests assets pledged pursuant to the Pledge Agreement), (i) any real property (owned or leased) or oil and gas properties (owned or leased) other securitiesthan the Mortgaged Properties, and (j) any asset at any time that is not then subject to a Lien securing First-Priority Lien Obligations at such time (the foregoing clauses (a) through (j), the “Excluded Note CollateralAssets”). In such eventWith respect to the Collateral, no control agreements or control arrangements will be required with respect to any Deposit Accounts, Securities Accounts, Commodity Contracts or any other asset, the Security Documents may be amended perfection of a security interest in which specifically requires a control arrangement or modified, without control agreement (other than the consent delivery of Pledged Securities to the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Applicable Agent to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted required by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirementArticle II). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Collateral Agreement (EP Energy Corp), Collateral Agreement (EP Energy Corp), Collateral Agreement (EP Energy Corp)
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations Secured Obligations:
(other than contingent obligations), each Grantor hereby confirms a) uniQure Holdings grants to Lender a first ranking right of pledge on its shares in uniQure and uniQure IP;
(b) uniQure grants to Lender a first ranking right of pledge on its shares in its Dutch subsidiaries identified on the pledge Schedule 1 hereto and grant to the Collateral Agent, its successors and permitted assigns a security interest in 100% of the security interest capital stock of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due US Borrower;
(whether at stated maturity, by acceleration or otherwisec) of the Obligations Borrower (other than contingent obligations), each Grantor hereby pledges and excluding US Borrower) grants to the Collateral AgentLender a first ranking right of pledge on its (a) trade, its successors intercompany and permitted assigns, for the ratable benefit of the Secured Parties, insurance receivables; (b) movable assets and (c) Deposit Accounts; and
(d) US Borrower grants to Lender a security interest in all of US Borrower’s right, title or title, and interest in and to the following personal property whether now owned or to any hereafter acquired: (a) receivables; (b) equipment; (c) fixtures; (d) general intangibles (except as described below); (e) inventory; (f) Investment property; (g) Deposit Accounts; (h) Cash;
(i) Goods; and all other tangible and intangible personal property of the following assets US Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, US Borrower and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time of Borrower’s property in the future may acquire any right, title possession or interest (but excluding any Excluded Collateral, collectively, under the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorLender; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any each of the foregoing and all collateral security and guarantees given by any person with respect to any of (collectively, the foregoing“Collateral”).
(b) 3.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note DocumentLoan Document to the contrary, in no event shall the Collateral include, and the Borrower shall not be deemed to have granted a security interest in: (i) Intellectual Property; provided, however, that the Collateral shall include all accounts and general intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Equity Interests and Intellectual Property (the “Rights to Payment”); or (ii) any of the Borrower’s rights or interests in or under, any license, contract, permit, instrument, security or franchise to which the Borrower is a party or any of its rights or interests thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract, permit, instrument, security or franchise, result in a breach of the terms of, or constitute a default under, such license, contract, permit, instrument, security or franchise (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (UCC or any other lawapplicable law (including the Dutch and the United States Bankruptcy Code) or principles of equity); provided, rule that immediately upon the ineffectiveness, lapse or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due such provision the Collateral shall include, and the Borrower shall be deemed to have granted a security interest in, all the fact rights and interests described in the foregoing clause (ii) as if such provision had never been in effect. Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that such subsidiary’s Equity Interests and other securities secure a security interest in the Senior Secured Notes and/or underlying Intellectual Property is necessary to have a security interest in the related guaranteesRights to Payment, then the Equity Interests Collateral shall automatically, and other securities of such subsidiary shall automatically be deemed not to be part effective as of the Collateral securing date of this Agreement, include the Note Obligations in favor of the Note Secured Parties (but only Intellectual Property to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent permit perfection of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority Lender’s security interests interest in the shares of Equity Interests and other securities that are so deemed Rights to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsPayment.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Loan and Security Agreement (uniQure N.V.), Loan and Security Agreement (uniQure B.V.), Loan and Security Agreement (uniQure B.V.)
Security Interest. (a) As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) and performance of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant Company grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of Agent and the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesPurchasers, a security interest in and Lien upon all of such Company’s right, title or title, and interest in or and to any all Fixtures and all of the following assets and properties personal property, in each case case, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising and wherever located (but excluding any Excluded Collateral, collectively, the “UCC Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property (but excluding thirty-five percent (35%) of the capital stock of any foreign Subsidiary that constitutes a Permitted Investment); (g) Deposit Accounts; (h) Cash; (i) all Accounts;
Goods; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiij) all Chattel Paper;
Commercial Tort Claims described in Schedule 4.15 (ivtogether with Commercial Tort Claims subject to a further writing provided in accordance with Section 6.3); (k) all Documents;
Contracts; (v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xil) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records ; and all books other tangible and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other intangible personal property whatsoever of such GrantorCompany whether now or hereafter owned or existing or acquired by such Company, and wherever located; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any each of the foregoing and all collateral security books and guarantees given by any person with respect records pertaining to each the foregoing. Notwithstanding any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests Collateral shall not under any circumstance include, and no security interest is granted in (i) any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property of a Company if under the terms of such contract, lease, permit, license, or license agreement, or applicable law with respect thereto, the grant of a security interest or lien therein is prohibited as a matter of law or under the terms of such contract, lease, permit, license, or license agreement and such prohibition or restriction has not been waived or the consent of the other securities party to such contract, lease, permit, license, or license agreement has not been obtained (provided, that, (A) the foregoing exclusions of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only this clause (i) shall in no way be construed (1) to apply to the extent that such Equity Interests and any described prohibition or restriction is unenforceable under Section 9-406, 9-407, 9-408, or 9-409 of the UCC or other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other applicable law, rule or regulation(2) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only apply to the extent necessary that any consent or waiver has been obtained that would permit Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement and (B) the foregoing exclusions of this clause (i) shall in no way be construed to not be subject to such requirement) (limit, impair, or otherwise affect any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority ’s continuing security interests in and liens upon any rights or interests of a Company in or to (1) monies due or to become due under or in connection with any described contract, lease, permit, license, or license agreement (including any Accounts), or (2) any proceeds from the shares sale, license, lease, or other dispositions of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amendedcontract, modified or interpreted by the SEC to permit (or is replaced with another rule or regulationlease, permit, license, or license agreement); (ii) any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be assets subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Mississippi Loan Documents such additional Equity Interests and other securities. This Section 3.01(bas of the date of the First Closing, (iii) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
any cash or cash equivalents described in clause (cvii) Each Grantor hereby authorizes of the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” definition of such Grantor or words of similar effectPermitted Indebtedness, and (iiiv) contain the information required by Article 9 assets subject to a Lien permitted under clause (vii) of the Uniform Commercial Code definition of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower“Permitted Liens”.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Senior Secured Convertible Promissory Note Purchase Agreement (Kior Inc), Senior Secured Promissory Note and Warrant Purchase Agreement (Kior Inc), Senior Secured Promissory Note and Warrant Purchase Agreement (Kior Inc)
Security Interest. All of the Borrowers' Obligations constitute one (a1) As security for loan secured by the Agent's Liens on the Collateral now or from time to time hereafter granted by any Borrower to the Agent. To secure timely payment or performance, as the case may be, and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Borrower hereby confirms the pledge sells, assigns, conveys, mortgages, pledges, hypothecates and grant transfers and hereby grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesLenders, a security interest in right of setoff against and a continuing Lien upon all of such Borrower's right, title or and interest in or and to any and all of the following assets property and properties interests in each case property, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
Borrower and wheresoever located: (i) all Accounts;
; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
General Intangibles; (iii) all Chattel Paper;
Fixtures; (iv) all Documents;
Inventory; (v) all Equipment;
; (vi) all General Intangibles;
Intellectual Property; (vii) all Goods;
Investment Property; (viii) all Instruments, including all Pledged Securities;
of such Borrower's deposit accounts (general or special) with any financial institution with which such Borrower maintains deposits; (ix) all Inventory of such Borrower's now owned or documents hereafter acquired monies, and any and all other property and interests in property of titlesuch Borrower now or hereafter coming into the actual possession, customs receiptscustody or control of the Agent or any Lender or any agent or affiliate of the Agent or any Lender in any way or for any purpose (whether for safekeeping, insurance certificatesdeposit, shipping documents and other written materials related to the purchase custody, pledge, transmission, collection or import of any Inventory;
otherwise); (x) all Investment Property;
Documents, Instruments and Chattel Paper of such Borrower; (xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect insurance policies relating to any of the foregoing.
, including without limitation business interruption insurance; (bxii) Notwithstanding anything all of such Borrower's books and records relating to any of the contrary in this Agreement or any other Senior Secured Note Documentforegoing; (xiii) all accessions and additions to, the Equity Interests substitutions for, and other securities replacements of any direct or indirect subsidiary of Holdings that are owned by the foregoing; and (xiv) all cash collections from, and all other cash and non-cash proceeds of, any Grantor will constitute Collateral securing Note Obligations for of the benefit foregoing including, without limitation, proceeds of Senior Secured Note Holders only and unearned premiums with respect to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or insurance policies insuring any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (and claims against any such Equity Interests or other securitiesPerson for loss of, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party damage to, or in any way alter or modifydestruction of, any obligation or liability of any Grantor with respect to or arising out all of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Loan and Security Agreement (Lois/Usa Inc), Loan and Security Agreement (Lois/Usa Inc), Loan and Security Agreement (Lois/Usa Inc)
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Aggregate Capital and grant to the Collateral Agent, its successors and permitted assigns all Interest in respect of the security interest of Loans and all other Borrower Obligations, the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Borrower hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a valid, continuing and perfected first priority security interest in in, all of the Borrower’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (i) all Accounts;
Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect to such Pool Receivables, (iv) the Cash Collateral Account Lock-Boxes and Collection Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Collection Accounts and amounts on deposit therein, (v) all rights (but none of the obligations) of the Borrower under each Purchase and Sale Agreement, (vi) all other personal and fixture property or assets of the Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter of credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the Revolving Credit AgreementUCC) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
. The Administrative Agent (xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties Parties) shall have, with respect to all the Collateral, and in accordance with addition to all the terms other rights and remedies available to the Administrative Agent (for the benefit of the Credit Agreement Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Borrower hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Agreement. In Immediately upon the event that Rule 3-10 or Rule 3-16 occurrence of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor Final Payout Date or words of similar effect, and (ii) contain in the information required by Article 9 event the Purchase Price of a Receivable has been reduced to zero and the Uniform Commercial Code credit for such reduction has been applied pursuant to Section 3.3 of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organizationeither Purchase and Sale Agreement, the type of organization and any organizational identification number issued to such Grantor and (y) Collateral, in the case of a financing statement filed as a fixture filingclause (i), a sufficient description or the applicable Receivable and any Related Rights solely with respect to such Receivable, in the case of clause (ii), shall be automatically released from the lien created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the real property to which such Collateral relates. Each Grantor agrees to provide such information Administrative Agent, the Lenders and the other Credit Parties hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral Agent shall revert to the Borrower; provided, however, that promptly upon following written request. The Collateral Agent agrees, upon request therefor by the Borrower delivered to the Administrative Agent following any such termination, and at the expense of the Borrower’s expense, to promptly furnish copies of such filings the Administrative Agent shall execute (if applicable) and deliver to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent Borrower UCC-3 termination statements and Trademark Office or United States Copyright Office (or any successor office) such other documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, shall reasonably request to promptly furnish copies of evidence such filings to the Borrowertermination.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Receivables Financing Agreement (OLIN Corp), Receivables Financing Agreement (OLIN Corp), Receivables Financing Agreement (OLIN Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsSupporting Obligations;
(xv) all Supporting Obligations;cash and cash equivalents and Deposit Accounts, and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. Notwithstanding the foregoing, in no event shall any control agreements be required to be obtained in respect thereof.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Parent Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Parent Borrower.
(dc) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Parent Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Parent Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Guarantee and Collateral Agreement (VWR Funding, Inc.), Guarantee and Collateral Agreement (VWR Funding, Inc.), Guarantee and Collateral Agreement (VWR Funding, Inc.)
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to any Credit Party, Borrower Indemnified Party and/or Affected Person to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Aggregate Capital and grant to the Collateral Agent, its successors and permitted assigns all Interest in respect of the security interest of Loans and all other Borrower Obligations, the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Borrower hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in in, all of the Borrower’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (i) all Accounts;
Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect to such Pool Receivables, (iv) the Cash Collateral Account Lock-Boxes and Collection Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Collection Accounts and amounts on deposit therein, (v) all rights (but none of the obligations) of the Borrower under the Sale Agreements, (vi) all other personal and fixture property or assets of the Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter of credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the Revolving Credit AgreementUCC) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
. The Administrative Agent (xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties Parties) shall have, with respect to all the Collateral, and in accordance with addition to all the terms other rights and remedies available to the Administrative Agent (for the benefit of the Credit Agreement Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Borrower hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Agreement. In Immediately upon the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess occurrence of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note TrusteeFinal Payout Date, the Collateral shall be automatically released from the lien created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent, the Lenders and the other Credit Parties hereunder shall terminate, all without delivery of any Senior Secured Note Holder instrument or performance of any holder of Other Pari Passu Lien Obligationsact by any party, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect all rights to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information shall revert to the Collateral Agent Borrower; provided, however, that promptly upon following written request. The Collateral Agent agrees, upon request therefor by the Borrower delivered to the Administrative Agent following any such termination, and at the expense of the Borrower’s expense, to promptly furnish copies of such filings the Administrative Agent shall execute and deliver to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent Borrower UCC-3 termination statements and Trademark Office or United States Copyright Office (or any successor office) such other documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, shall reasonably request to promptly furnish copies of evidence such filings to the Borrowertermination.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Receivables Financing Agreement (CONSOL Energy Inc.), Receivables Financing Agreement, Sub Originator Sale Agreement, Purchase and Sale Agreement (CONSOL Energy Inc.), Receivables Financing Agreement (CONSOL Energy Inc.)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Money and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all GoodsInstruments;
(viiih) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xi) all Investment Property;
(xij) all Letter-of-Credit Rights;
(k) all Intellectual Property;
(xiil) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiim) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held Security Entitlements in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorrespect thereof; and
(xixiii) all cash held in any Securities Account or Deposit Account;
(n) all books and Records pertaining to the extent not otherwise included, Article 9 Collateral; and
(o) all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, (i) the Equity Interests Article 9 Collateral will not include any Pledged Collateral and other securities (ii) the Article 9 Collateral (and any components comprising thereof) will not include, this Agreement will not constitute a grant of any direct or indirect subsidiary of Holdings that are owned by any Grantor a security interest in, the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only not attach to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (no representation, warranty, covenant or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (provision contained in this Agreement or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary Security Document shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agentapply to, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Subject to the limitations set forth in Section 4.01(6), each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor; and
(yb) a description of collateral that describes such property in any manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the case Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatessimilar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon reasonable written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted in Intellectual Property by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Sources: Term Loan Guarantee and Collateral Agreement, Term Loan Guarantee and Collateral Agreement (Amneal Pharmaceuticals, Inc.), Abl Guarantee and Collateral Agreement (Impax Laboratories, LLC)
Security Interest. (ai) As This Agreement creates a valid and continuing security for interest (as defined in the payment or performance, as applicable UCC) in the case may be, Collateral in full when due (whether at stated maturity, by acceleration or otherwise) favor of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit on behalf of the Secured Parties, a which security interest in is prior to all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever locatedother Liens (except for Permitted Liens), and now owned or at any time hereafter acquired by is enforceable as such Grantor or in which such Grantor now has or at any time in against creditors of and purchasers from the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all AccountsSeller;
(ii) the Cash Collateral Account (as defined in Asset, along with the Revolving Credit Agreement) and all cashrelated Asset Files, securities, Instruments and other property deposited constitute a “general intangible,” an “instrument,” an “account,” or required to be deposited therein“chattel paper,” within the meaning of the applicable UCC;
(iii) all Chattel Paperthe Seller owns and has good and marketable title to the Collateral free and clear of any Lien (other than Permitted Liens), claim or encumbrance of any Person;
(iv) the Seller has received all Documentsconsents and approvals required by the terms of any Asset to the sale and granting of a security interest in the Assets hereunder to the Administrative Agent, on behalf of the Secured Parties;
(v) the Seller has caused the filing of all Equipmentappropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the security interest in the Collateral granted to the Administrative Agent, on behalf of the Secured Parties, under this Agreement;
(vi) all General Intangiblesother than the security interest granted to the Administrative Agent, on behalf of the Secured Parties, pursuant to this Agreement, the Seller has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Collateral. The Seller has not authorized the filing of and is not aware of any financing statements against the Seller that include a description of collateral covering the Collateral other than any financing statement (A) relating to the security interest granted to the Seller under the Sale Agreement, or (B) that has been terminated. The Seller is not aware of the filing of any judgment or tax lien filings against the Seller;
(vii) all Goodsoriginal executed copies of each underlying promissory note or copies of each Loan Register, as applicable, that constitute or evidence each Loan has been, or subject to the delivery requirements contained herein, will be delivered to the Collateral Custodian;
(viii) all Instrumentsthe Seller has received a written acknowledgment from the Collateral Custodian that the Collateral Custodian or its bailee is holding the underlying promissory notes (if any), including all Pledged Securitiesthe copies of the Loan Registers that constitute or evidence the Assets solely on behalf of and for the benefit of the Secured Parties;
(ix) all Inventory none of the underlying promissory notes or documents Loan Registers, as applicable, that constitute or evidence the Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Administrative Agent, on behalf of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;Secured Parties; and
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part none of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be has been pledged or otherwise made subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsLien.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Security Interest. (a) 1.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to under the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any control of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) 1.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part broad grant of the Collateral securing the Note Obligations security interest set forth in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note TrusteeSection 3.1 above, the Collateral Agent, shall not include (“Excluded Collateral”): (a) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, “intent to use” trademarks at all times prior to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtfirst use thereof, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted whether by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees actual use thereof in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventcommerce, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Copyright Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor officeprovision) such intent-to-use application shall constitute Collateral, (b) nonassignable licenses or contracts, which by their terms require the consent of the licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law including, without limitation, Sections 9-406, 9-407, 9-408 and 9-409 of the UCC), (c) any Excluded Accounts, (d) any assets to which the Agent in its sole discretion shall determine that the costs and burdens of obtaining or perfecting a security interest therein substantially outweigh the benefit to the Lenders of the security afforded thereby (including, without limitation, vehicles and other assets subject to a certificate of title), (e) more than 65% of the issued and outstanding shares of capital stock which entitle the holder thereof to vote for directors or any other matter of any Foreign Subsidiary or any Foreign Subsidiary Holding Company, to the extent that the pledge of more than 65% of such voting stock of such Foreign Subsidiary or Foreign Subsidiary Holding Company could reasonably be expected to result in a material adverse tax consequence to Borrower, and solely for as long as such consequence could result, (f) property for which the granting of a security interest therein is contrary to applicable law, rule or regulation, provided that upon the cessation of any such restriction or prohibition, such property shall automatically be included in the Collateral, (g) any cash collateral deposit subject to a Permitted Lien hereunder, if the grant of a security interest with respect to such property pursuant to this Agreement would be prohibited by the agreement creating such Permitted Lien or would otherwise constitute a default thereunder or create a right of termination in favor of a party thereto (other than Borrower or any Subsidiary thereof), provided that upon the termination and release of such cash collateral, such property shall automatically be included in the Collateral, (h) any lease, license or other agreement and any property subject thereto on the Closing Date or on the date of the acquisition of such property (other than any property acquired by Borrower subject to any such contract or other agreement to the extent such contract or other agreement was incurred in contemplation of such acquisition) to the extent that a grant of a security interest therein to secure the Secured Obligations would violate or invalidate such lease, license, contract or agreement or create a right of termination in favor of any other party thereto (other than Borrower or any Subsidiary thereof) (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-408 or 9-409 (or any other Section) of Article 9 of the UCC), including any Equity Interests of JV Entities owned by Borrower or any Subsidiary thereof, or (i) property owned by Borrower that is subject to a purchase money Lien or a capital lease (and the proceeds thereof) permitted under this Agreement if the contractual obligation pursuant to which such Lien is granted (or in the document providing for such capital lease) prohibits or requires the consent of any person other than Borrower which has not been obtained as a condition to the creation of, any other Lien on such property.
1.3 Upon termination of this Agreement and repayment in full of all Secured Obligations (other than any inchoate indemnity obligations, any obligations under Bank Services Agreements constituting Secured Obligations that are cash collateralized in accordance with Section 3.4 of this Agreement or for which other satisfactory arrangements with the provider of such Bank Services have been made and any other obligations which, by their terms, are to survive the termination of this Agreement), all security interests in the Collateral granted under this Agreement shall terminate and all rights on the Collateral shall revert to Borrower. The Agent shall execute such documents and take such other steps as may be are reasonably necessary for Borrower to accomplish the purpose foregoing, all at Borrower’s sole cost and expense.
1.4 The security interest granted in Section 3.1 of perfectingthis Agreement shall continue until the Secured Obligations (other than any inchoate indemnity obligations, confirmingany obligations under Bank Services Agreements constituting Secured Obligations that are cash collateralized in accordance with this Section 3.4 of this Agreement or for which other satisfactory arrangements with the provider of such Bank Services have been made and any other obligations which, continuingby their terms, enforcing are to survive the termination of this Agreement) have been paid in full and Lenders have no further commitment or protecting obligation hereunder or under the Security Interest granted by each Grantor, without the signature of other Loan Documents to make any Grantorfurther Advances, and naming shall thereupon terminate upon Borrower providing cash collateral or other credit support (if any) acceptable to SVB in its reasonable discretion (and executing, delivering and filing, alone or with SVB, any Grantor financing statements, security agreements, collateral assignments, notices, control agreements or the Grantors as debtors other documents to perfect SVB’s security interest in such cash collateral) for Secured Obligations constituting Bank Services, if any, and Lenders and the Collateral Agent as secured party. The Collateral Agent agreesshall, upon request by the Borrower and at the Borrower’s expense, take all actions reasonably requested by Borrower to promptly furnish copies evidence such termination. In the event there are Bank Services that are Secured Obligations consisting of outstanding Letters of Credit, upon the termination or acceleration of the Secured Obligations hereunder, Borrower shall provide to SVB cash collateral (and execute, deliver and file, alone or with SVB, any financing statements, security agreements, collateral assignments, notices, control agreements or other documents to perfect SVB’s security interest in such filings cash collateral) in an amount equal to at least (i) one hundred three percent (103.0%) of the face amount of all such Letters of Credit denominated in Dollars and (ii) one hundred eight percent (108.0%) of the Dollar Equivalent of the face amount of all such Letters of Credit denominated in a Foreign Currency, plus, in each case all interest, fees, and costs due or to become due in connection therewith (as estimated by SVB in its good faith business judgment), to secure all of the Secured Obligations relating to such Letters of Credit after the termination or acceleration of the Secured Obligations hereunder. Notwithstanding anything to the Borrower.
(e) The Security Interest contrary herein, it is granted agreed and understood by SVB, on behalf of itself and its applicable Affiliates, that any cash collateral already, as security only andof the Closing Date, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability securing letters of any Grantor credit constituting Bank Services is sufficient cash collateral with respect to the face amounts of such letters of credit and no further cash collateral or arising out other arrangements shall be required in respect thereof at the termination or acceleration of the CollateralSecured Obligations hereunder.
1.5 Borrower acknowledges that it previously has entered, and/or may in the future enter, into Bank Services Agreements with SVB. Nothing contained in this Agreement Regardless of the terms of any Bank Services Agreement, ▇▇▇▇▇▇▇▇ agrees that any amounts Borrower owes SVB thereunder shall be construed deemed to make be Secured Obligations hereunder and that it is the intent of Borrower and SVB to have all such Secured Obligations secured by the first priority perfected security interest in the Collateral granted herein (subject only to Addendum 4 and Permitted Liens, and by any and all other security agreements, mortgages, or other collateral granted to the Agent by ▇▇▇▇▇▇▇▇ as security for the Secured Obligations, now or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personfuture.
Appears in 2 contracts
Sources: Loan and Security Agreement (Oak Street Health, Inc.), Loan and Security Agreement (Oak Street Health, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all Goods;
(viiix) all Instruments, including all Pledged Securities;
(ixxi) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting ObligationsLetters of Credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorMoney; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset or any other Senior Secured Note Document, Excluded Security.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Pledge and Security Agreement (VPNet Technologies, Inc.), Pledge and Security Agreement (VPNet Technologies, Inc.)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”).
(b) 3.2 Notwithstanding anything to the contrary broad grant of the security interest set forth in this Agreement or any other Senior Secured Note DocumentSection 3.1, above, the Equity Interests and other securities of any direct Collateral shall not include: (a) non-assignable licenses or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adoptedcontracts, which would require) by their terms require the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part consent of the Collateral securing the Note Obligations in favor of the Note Secured Parties licensor thereof or another party (but only to the extent necessary to not be subject to such requirementprohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 of the UCC), (b) any Excluded Account, (c) any such Equity Interests interest of Borrower as a lessee under an Equipment lease or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, capital assets constituting purchase money Liens to the extent necessary permitted pursuant to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part clause (vii) of the Collateral securing the Note Obligations in favor definition of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with Permitted Liens if Borrower is prohibited by the terms of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease; provided, however, that upon termination or cessation of such prohibition, such interest shall immediately become Collateral without any action by Borrower, Agent or Lenders, (d) any Intellectual Property and (e) any particular asset if the Credit Agreement and this Agreement. In pledge thereof or the event that Rule 3-10 security interest therein is prohibited or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted restricted by the SEC to permit (or is replaced with another rule or regulation, or any other applicable law, rule or regulation is adopted(including any requirement to obtain the consent of any governmental authority, which would permitregulatory authority or third party), provided that the foregoing exclusion of this clause (e) such subsidiary’s Equity Interests and other securities shall in no way be construed (1) to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only apply to the extent necessary to not be subject to that any such financial statement requirement). In such eventdescribed prohibition or restriction is unenforceable under Section 9-406, the Security Documents may be amended 9-407, 9-408, or modified, without the consent 9-409 of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder UCC or any holder of Other Pari Passu Lien Obligations, other applicable law or (2) to apply to the extent necessary to subject to that any consent or waiver has been obtained, or is hereafter obtained, that would permit the Liens under Agent’s security interest or Lien notwithstanding the Security Documents prohibition or restriction on the pledge of such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsasset.
3.3 At such time as the Secured Obligations (cother than inchoate indemnity obligations) Each Grantor hereby authorizes are paid in full in cash, Agent’s Lien on the Collateral shall be released and all rights therein shall revert to Borrower, and, at Borrower’s sole cost and expense, Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide execute such information documents and take such other steps as are reasonably necessary for Borrower to accomplish the Collateral Agent promptly upon written request. The Collateral Agent agreesforegoing, upon request by the Borrower and all at the Borrower’s sole cost and expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Constellation Pharmaceuticals Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(x) all Goods and Fixtures;
(xi) all Money, cash, cash equivalents and Deposit Accounts;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule II from time to time, as such Schedule may be supplemented from time to time pursuant to Section 3.02;
(xiv) each Collateral Account, and all letters of credit under which such Grantor is the beneficiary cash, Money, Securities and Letter of Credit Rightsother investments deposited therein;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalentsSecurity Entitlements in any or all of the foregoing;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and (including proceeds of all offsprings, rents profits and products of any of the foregoing insurance policies) and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything herein to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligationscontrary, to the extent necessary to release and for so long as any asset is Excluded Property, the first-priority security interests in Security Interest granted under this Section 3.01 shall not attach to, and Article 9 Collateral shall not include, such asset; provided, however, that the shares of Equity Interests Security Interest shall immediately attach to, and other securities that are so deemed to no longer constitute part of the Article 9 Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtshall immediately include, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit asset (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permitportion thereof) upon such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC asset (or any other governmental agencysuch portion) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed ceasing to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Property.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) for the benefit of the Secured Parties at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, (or its designee) to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrowerdate hereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, security interest granted pursuant to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Term Pledge and Security Agreement, Term Pledge and Security Agreement (Entegris Inc)
Security Interest. (a) As security for For value received the payment or performance, as the case may be, in full when due undersigned (whether at stated maturity, by acceleration or otherwise"Debtor") of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesROYAL BANK OF CANADA ("RBC"), a security interest (the "Security Interest") in the undertaking of Debtor and in all rightof Debtor's present and after acquired personal property including, title without limitation, in all Goods (including all parts, accessories, attachments, special tools, additions and accessions thereto), Chattel Paper, Documents of Title (whether negotiable or interest not), Instruments, Intangibles, Money and Securities now owned or hereafter owned or acquired by or on behalf of Debtor including such as may be returned to or repossessed by Debtor) and in or to any all proceeds and renewals thereof, accretions thereto and substitutions therefore (hereinafter collectively called "Collateral"), and including, without limitation, all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter owned or acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):on behalf of Debtor:
(i) all Accounts;inventory of whatever kind and wherever situate:
(ii) the Cash Collateral Account all equipment (as defined in the Revolving Credit Agreementother than inventory) of whatever kind and whatever situate, including, without limitation, all cashmachinery, securitiestools, Instruments apparatus, plant, furniture, fixtures and other property deposited vehicles of whatsoever nature or required to be deposited thereinkind;
(iii) all Chattel PaperAccounts and book debts and generally all debts, dues, claims, choses in action and demands of every nature and kind howsoever arising or secured including letters of credit and advices of credit, which are now due, owing or accruing or growing due to or owned by or which may hereafter become due, owing or accruing or growing due to or owned by Debtor ("Debts");
(iv) all Documentsdeeds documents, writings, papers, books of account and other books relating to or being records of Debts, Chattel Paper or Documents of Title or by which such are or may hereafter be secured, evidenced, acknowledged or made payable;
(v) all Equipmentcontractual rights and insurance claims;
(vi) all General Intangibles;patents, industrial designs, trade-marks, trade secrets and know-how including without limitation environmental technology and biotechnology, confidential information, trade-names, goodwill, copyrights, personality rights, plant breeders' rights, integrated circuit topographies software and all other forms of intellectual and industrial property, and any registrations and applications for registration of any of the foregoing (collectively "Intellectual Property"); an
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory property described in Schedule "C" or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase any schedule now or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoinghereafter annexed hereto.
(b) Notwithstanding anything The Security Interest granted hereby shall not extend or apply to and Collateral shall not include the contrary in this Agreement or any other Senior Secured Note Document, last day of the Equity Interests and other securities term of any direct lease or indirect subsidiary agreement therefor but upon the enforcement of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other lawSecurity Interest, rule or regulation) requiring separate financial statements Debtor shall stand possessed of such subsidiary last day in trust to be filed with assign the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject same to any person acquiring such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsterm.
(c) Each Grantor hereby authorizes The terms "Goods", "Chattel Paper", "Document of Title", "Instrument", "Intangible", "Security", "proceed", "inventory", "accession", "Money", "Account", "financing statement" and "financing change statement" whenever used herein shall be interpreted pursuant to their respective meanings when used in The Personal Property Security Act of the Collateral Agent at any time and province referred to in Clause 14(r), as amended from time to time time, which Act, including amendments thereto and any Act substituted therefor and amendments thereto is herein referred to file as the "P.P.S.A.". Provided always that the term "Goods" when used herein shall not include "consumer goods" of Debtor as that term is defined in any relevant jurisdiction any financing statements (including fixture filings) with respect the P.P.S.A., and the term "Inventory" when used herein shall include livestock and the young thereof after conception and crops that become such within one year of execution of this Security Agreement. Any reference herein to "Collateral" shall, unless the Collateral context otherwise requires, be deemed a reference to "Collateral" or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerthereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Demand Loan Financing Agreement, Demand Loan Financing Agreement (Ideal Accents Inc)
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturityon the payment dates, by acceleration or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Lender a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and Borrower's personal property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in acquired, including the future may acquire any rightfollowing (collectively, title or interest the "Collateral"): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property (but excluding thirty-five percent (35%) of the capital stock of any Excluded Collateral, collectively, the “Collateral”):
foreign Subsidiary that constitutes a Permitted Investment if to include such capital stock as Collateral would cause Borrower adverse tax consequences under Internal Revenue Section 956 or any successor statute); (g) Deposit Accounts; (h) Cash; (i) all Accounts;
Goods; (iij) the Cash Collateral Account Intellectual Property (other than Intellectual Property designated as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments“Excluded Intellectual Property” on Exhibit D), including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities AccountsGeneral Intangibles that consist of rights to payment and proceeds from the sale, including licensing or disposition of all cashor any part, marketable securitiesor rights in, securities entitlements, financial assets the Intellectual Property (“Rights to Payment”); (k) other tangible and other funds held in or on deposit in any of the foregoing;
(xviii) all other intangible personal property whatsoever of such GrantorBorrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located; and
, (xixl) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
; provided however that the security interest shall not extend to any property that is subject to a Permitted Lien described in clause (bvii) Notwithstanding anything to of the contrary in this Agreement or any other Senior Secured Note Documentdefinition of "Permitted Lien", the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that the inclusion of such Equity Interests and other securities can secure property in the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 Collateral hereunder would violate or Rule 3-16 of Regulation S-X require any consent under the Securities Act (agreements governing such Permitted Liens or associated Indebtedness; provided further however, that the security interest shall not extend to any Accounts and General Intangibles that prohibit assignment unless the prohibition against assignment would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406 or 9-408 of the UCC or any successor provision or provisions of any relevant jurisdiction or any other applicable law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with including the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationBankruptcy Code, or any other lawprinciples of equity. Notwithstanding the foregoing, rule or regulation if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Excluded Intellectual Property is adopted, which would require) necessary to have a security interest in the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due Rights to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesPayment, then the Equity Interests Collateral shall automatically, and other securities of such subsidiary shall automatically be deemed not to be part effective as of the Collateral securing date of this Agreement, include the Note Obligations in favor of the Note Secured Parties (but only Excluded Intellectual Property to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent permit perfection of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority Lender’s security interests interest in the shares of Equity Interests and other securities that are so deemed Rights to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsPayment.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Aggregate Capital and grant to the Collateral Agent, its successors and permitted assigns all Interest in respect of the security interest of Loans and all other Borrower Obligations, the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Borrower hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a valid, continuing and perfected first priority security interest in in, all of the Borrower’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (i) all Accounts;
Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect to such Pool Receivables, (iv) the Cash Collateral Account Lock-Boxes and Collection Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Collection Accounts and amounts on deposit therein, (v) all rights (but none of the obligations) of the Borrower under the Purchase and Sale Agreement, (vi) all other personal and fixture property or assets of the Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter of credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the Revolving Credit AgreementUCC) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act The Administrative Agent (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties Parties) shall have, with respect to all the Collateral, and in accordance with addition to all the terms other rights and remedies available to the Administrative Agent (for the benefit of the Credit Agreement Secured Parties), all the rights and this Agreementremedies of a secured party under any applicable UCC. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor The Borrower hereby authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to describing as the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral collateral covered thereby as “all of the debtor’s personal property or assets” of such Grantor or words of similar to that effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether notwithstanding that such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as wording may be necessary for broader in scope than the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained collateral described in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonAgreement.
Appears in 2 contracts
Sources: Receivables Financing Agreement (Applied Industrial Technologies Inc), Receivables Financing Agreement (Integra Lifesciences Holdings Corp)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Cash Equivalents and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all Goods
(h) all Instruments;
(viiii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xj) all Investment Property;
(xik) all Letter of Credit Rights;
(l) all Intellectual Property;
(xiim) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiin) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsSecurity Entitlements in respect thereof;
(xv) all Supporting Obligations;
(xviiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in any Securities Account or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorDeposit Account; and
(xixiv) all other Money in the possession of the Collateral Agent;
(o) all books and Records pertaining to the extent not otherwise includedArticle 9 Collateral; and
(p) all proceeds, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, the Equity Interests Article 9 Collateral will not include, this Agreement will not constitute a grant of a security interest in and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject attach to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor;
(yb) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates; and
(c) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of similar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Abl Guarantee and Collateral Agreement (PET Acquisition LLC), Abl Guarantee and Collateral Agreement (PET Acquisition LLC)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of the date of this Agreement, include the Intellectual Property to the extent necessary to permit perfection of Agent’s security interest in the Rights to Payment.
3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (ba) Notwithstanding anything any property, right or asset held by Borrower to the contrary extent that a grant of a security interest therein is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, right or asset, except (A) to the extent that the terms in such contract, license, instrument or other document providing for such prohibition, breach, default or termination, or requiring such consent are not permitted under this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only (B) to the extent that such Equity Interests and Requirement of Law or the term in such contract, license, agreement, instrument or other securities can secure document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9406, 9407, 9408 or 9409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act UCC (or any other law, rule successor provision or regulationprovisions) requiring separate financial statements of such subsidiary to be filed with the SEC (any relevant jurisdiction or any other governmental agencyapplicable law (including the Bankruptcy Code of the United States). In the event ; provided, however, that Rule 3-10 such security interest shall attach immediately at such time as such Requirement of Law is not effective or Rule 3-16 of Regulation S-X under the Securities Act requires applicable, or such prohibition, breach, default or termination is no longer applicable or is amendedwaived, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due and to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent severable, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not attach immediately to be part any portion of the Collateral securing the Note Obligations that does not result in favor of the Note Secured Parties such consequences, (but only to the extent necessary to not be subject to such requirementb) (any such Equity Interests or other securitiesExcluded Accounts, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at assets of any time non-wholly owned Subsidiaries pursuant to customary restrictions and from time conditions contained in agreements governing joint ventures or strategic alliances in the ordinary course of business, provided that Borrower has exercised its good faith best efforts to time not agree to file such contractual limitations, (d) interests in any relevant jurisdiction any financing statements joint ventures that constitute Permitted Investments pursuant to customary restrictions and conditions contained in agreements governing such joint ventures in the ordinary course of business, provided that Borrower has exercised its good faith best efforts to not agree to such contractual limitations, or (including fixture filingse) with respect to shares or stock in Excluded Subsidiaries, more than 65% to the Collateral or any part thereof and amendments thereto extent that (i) indicate the Collateral as “all assets” pledge of more than 65% of such Grantor shares or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing stock of any financing statement or amendment, including (x) whether such Grantor is Excluded Subsidiary would result in an organization, the type of organization and any organizational identification number issued adverse tax consequence to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent 3.3 [Reserved].
3.4 If this Agreement is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfectingterminated, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and Agent’s Lien in the Collateral Agent as secured partyshall continue until the Secured Obligations (other than inchoate indemnity obligations) are repaid in full in cash. The Collateral Agent agrees, upon request by Upon payment in full in cash of the Borrower Secured Obligations (other than inchoate indemnity obligations) and at such time as the Lenders’ obligation to make credit extensions has terminated, Agent shall, at the sole cost and expense of Borrower’s expense, release its Liens in the Collateral and all rights therein shall revert to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (Geron Corp), Loan and Security Agreement (Geron Corp)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (including Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) 3.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part broad grant of the Collateral securing the Note Obligations security interest set forth in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesSection 3.1, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeabove, the Collateral Agent, shall not include (a) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, “intent to use” trademarks at all times prior to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtfirst use thereof, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted whether by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees actual use thereof in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventcommerce, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Copyright Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor officeprovision) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantorintent-to-use application shall constitute Collateral, and naming any Grantor (b) nonassignable licenses or contracts, which by their terms require the Grantors as debtors and consent of the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings licensor thereof or another party (but only to the Borrower.
(e) The Security Interest extent such prohibition on transfer is granted as security only and, except as otherwise required by enforceable under applicable law, shall not subject the Collateral Agent or any other Secured Party toincluding, or in any way alter or modifywithout limitation, any obligation or liability of any Grantor with respect to or arising out Sections 9406, 9407 and 9408 of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonUCC).
Appears in 2 contracts
Sources: Loan and Security Agreement (Communications Systems Inc), Working Capital Loan and Security Agreement (Communications Systems Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agentpledges, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors on behalf of and permitted assigns, for the ratable benefit of the Secured PartiesCreditors, a security interest (the “Security Interest”) in all of its right, title or and interest in or in, to any and under all of the following assets property and properties in each case other assets, whether tangible or intangible, wherever located, and now owned by or at any time owing to, or hereafter acquired by or arising in favor of, such Grantor or in Grantor, and regardless of where located (all of which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, are collectively referred to as the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including Electronic Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinTangible Chattel Paper);
(iii) all Chattel PaperIntellectual Property;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Instruments;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights and Supporting Obligations;
(xiii) all Records and all books and records pertaining to the CollateralDeposit Accounts;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsVehicles;
(xv) all Supporting ObligationsCommercial Tort Claims as specified from time to time in Schedule IV hereto (as the same may be updated from time to time in accordance with the terms hereof);
(xvi) all cash or other property deposited with the Collateral Agent or any Secured Creditor or any Affiliate of the Collateral Agent or any Secured Creditor or which the Collateral Agent, for its benefit and cash equivalentsfor the benefit of the other Secured Creditors, or any Secured Creditor or such Affiliate is entitled to retain or otherwise possess as collateral pursuant to the provisions of this Agreement or the Credit Agreement;
(xvii) all Deposit Accounts books, records, files, correspondence, computer programs, tapes, disks and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in related data processing software which contain information identifying or on deposit in pertaining to any of the foregoingforegoing or any Account Debtor or showing the amounts thereof or payments thereon or otherwise necessary or helpful in the realization thereon or the collection thereof;
(xviii) all other personal property whatsoever of such GrantorAs-Extracted Collateral; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all accessions to, substitutions for and replacements, products and cash and non-cash proceeds (including Stock Rights) of the foregoing (including any claims to any items referred to in this definition and all offspringsany claims against third parties for loss of, rents profits and products damage to or destruction of any or all of the foregoing and all collateral security and guarantees given by any person Collateral or for proceeds payable under or unearned premiums with respect to policies of insurance) in whatever form, including cash, negotiable instruments and other instruments for the payment of money, Chattel Paper, collateral agreements and other documents. Notwithstanding the foregoing or anything herein to the contrary, in no event shall the “Article 9 Collateral” include or the Security Interest attach to any of the foregoingExcluded Collateral.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent Creditors at any time and from time to time to file in any relevant U.S. jurisdiction any financing statements (including fixture filings) statements, with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) ), such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of Patents, Trademarks or Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowercreditor.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party Creditor to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Abl Collateral Agreement (Builders FirstSource, Inc.)
Security Interest. (a) As security for For value received, to secure the payment or performance, as of up to Five Hundred Thousand and no/100 Dollars ($500,000.00) and the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) performance of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral obligations under this Agreement, for the ratable benefit of the Loan Secured PartiesPromissory Note, and as security for the payment or performanceany other loan documents executed contemporaneously with this Agreement, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a security interest in all rightthe following: General Intangibles consisting of Intellectual Property, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
specifically including (i) all Accounts;
the issued U.S. Patents set forth in Exhibit A; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) any patent or patent application claiming priority thereto, including but not limited to, non-provisional patents, reexaminations, reissues, continuations, continuations-in-part, divisions, renewals, and all cashextensions, securities, Instruments and other property deposited or required to be deposited therein;
any foreign counterparts thereto; (iii) all Chattel Paper;
goodwill of the business connected with the use of, and symbolized by, each Patent and (iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsincome, including all Pledged Securities;
(ix) all Inventory royalties, proceeds and liabilities at any time due or documents of title, customs receipts, insurance certificates, shipping documents payable or asserted under and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
, including, without limitation, all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof (b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Documentcollectively, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency“Patent Collateral”) of separate financial statements of any subsidiary of Holdings due to Grantor whether now owned or existing or hereafter acquired or arising, whether now existing or hereafter arising, and wherever located (the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent The obligations secured include any payment of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests attorneys’ fees and other securities that are so deemed expenses incurred by Secured Party to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, enforce or collect any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and obligation secured by this Agreement. In addition to the event that Rule 3-10 security interest granted above, Collateral includes all the following, whether now owned or Rule 3-16 existing or hereafter acquired or arising, whether now existing or hereafter arising, and wherever located:
a. All products and proceeds of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the property described in this Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationssection.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectb. All accounts, contract rights, rents, monies, payments, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any all other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or rights arising out of a sale, lease, or other disposition of the Collateral. Nothing contained .
c. All records and data relating to the Collateral, together with all of Grantor’s right, title, and interest in this Agreement shall be construed and to make the Collateral Agent all computer software required to utilize, create, maintain, and process any such records or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Persondata on electronic media.
Appears in 2 contracts
Sources: Security Agreement (Bion Environmental Technologies Inc), Security Agreement (Bion Environmental Technologies Inc)
Security Interest. (a) As Each Grantor, as security for the payment or performance, as the case may be, and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accountsaccounts (including accounts receivable and healthcare insurance receivables);
(ii) the Cash Collateral Account all chattel paper (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited whether tangible or required to be deposited thereinelectronic);
(iii) all Chattel Papercash, money and deposit accounts;
(iv) all Documentsdocuments (including electronic documents);
(v) all Equipmentgoods (including all equipment, fixtures and any accessions thereto);
(vi) all General Intangibles;
(vii) all Goodsinstruments (including promissory notes);
(viii) all Instruments, including all Pledged Securitiesinventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all insurance claims and proceeds;
(xi) all Intellectual Propertyletter-of-credit rights;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Administrative Agent, including describing such property as “all assets” or “all property”. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or and the United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Security Interest. (a) As security from the Guarantor for the payment or performance, as the case may be, and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Liabilities, each Grantor the Guarantor hereby confirms the pledge transfers, grants, bargains, conveys, hypothecates, pledges, sets over, delivers and grant to confers unto the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Agent for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and grants to the Collateral Agent for the benefit of the Secured Parties a security interest in all its right, title or and interest in or to any and all of the following assets and properties in each case (the "COLLATERAL"), whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):hereinafter acquired:
(i) all AccountsAccounts (including Health-Care-Insurance Receivables, if any) howsoever arising in connection with sale or lease of goods or services by the Guarantor to customers or any other Person (as defined in the Securities Purchase Agreement);
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperInstruments (including Promissory Notes);
(iv) all Documents;
(v) General Intangibles (including, without limitation, Payment Intangibles, Software, contract rights, credits, claims, demands, debts, choses in action, trade-marks, patents, and all Equipmentother intellectual property including, copyrights, and including in each case any documentation pertaining thereto);
(vi) all General IntangiblesLetter-of-Credit Rights;
(vii) all GoodsSupporting Obligations;
(viii) all Instruments, including all Pledged SecuritiesDeposit Accounts;
(ix) all Inventory or documents of titleInvestment Property (including without limitation certificated and uncertificated Securities), customs receiptsSecurities Accounts, insurance certificatesSecurity Entitlements, shipping documents Commodity Accounts, and other written materials related to the purchase or import of any InventoryCommodity Contracts);
(x) all Investment PropertyInventory;
(xi) Equipment (including all Intellectual Propertysoftware, whether or not the same constitutes embedded software, used in the operation thereof);
(xii) all Pledged CollateralMoney, including, without limitation, amounts deposited into escrow or with, third parties;
(xiii) all Records and all books and records pertaining to the CollateralFixtures;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets All rights to merchandise and other funds held goods (including rights to returned or repossessed Goods and rights of stoppage in transit) which is represented by, arises from, or on deposit in relates to any of the foregoing;
(xviiixv) All supporting evidence and documents relating to any of the above-described property, including, without limitation, computer programs, disks, tapes and related electronic data processing media and all rights of the Guarantor to retrieve the same from third parties, written applications, credit information, account cards, payment records, correspondence, delivery and installation certificates, invoice copies, delivery receipts, notes, and other personal property whatsoever evidences of such Grantor; andindebtedness, insurance certificates and the like, together with all books of account, ledgers, and cabinets in which the same are reflected or maintained;
(xixxvi) to the extent not otherwise includedAll Accessions and additions to, all Proceeds, all accessions to and substitutions and replacements for and products of of, any and all of the foregoing and all offsprings, rents profits foregoing; and
(xvii) All Proceeds and products of any the foregoing, and all insurance of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.proceeds thereof;
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Mitel Networks Corp), Guaranty and Security Agreement (Mitel Networks Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor Initial Grantor, solely until to the Working Capital Notes Termination, hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral AgreementTrustee, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Trustee for the ratable benefit of the Secured Parties, a security interest in (the “Article 9 Security Interest” and, together with the Initial Pledge, collectively, the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Initial Grantor or in which such Initial Grantor now has or at any time in the future future, solely until to the Working Capital Notes Termination, may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts, all Securities Accounts and all Commodities Accounts, including all Controlled Accounts and Pledged Risk Retention Instruments Account, together with all amounts on deposit from time to time thereto;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Propertybooks and records pertaining to the Article 9 Collateral;
(xii) all Pledged CollateralFixtures;
(xiii) all Records and all books and records pertaining Letter-of-Credit Rights, but only to the Collateralextent constituting a Supporting Obligation for other Article 9 Collateral as to which perfection of a security interest in such Article 9 Collateral is accomplished by the filing of a UCC financing statement;
(xiv) all letters of credit under which such Grantor is the beneficiary Intellectual Property and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorLicenses; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note Document, Initial Collateral Excluded Assets in the Equity Interests and other securities case of any direct or indirect subsidiary of Holdings Initial Collateral and the term “Article 9 Collateral” shall not include any Initial Collateral Excluded Assets; provided, further, that are owned by (i) if and when any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary assets shall cease to be filed with the SEC an Initial Collateral Excluded Asset, a Lien on and security in such assets shall be automatically deemed granted therein until, if ever, such assets shall again become Initial Collateral Excluded Assets and (or ii) a Lien on and security in such property shall be automatically deemed granted on any other governmental agency). In the event that Rule 3-10 or Rule 3-16 and all Proceeds of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien ObligationsAssets, to the extent necessary such Proceeds do not themselves constitute Initial Collateral Excluded Assets.
(b) Subject to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of Section 3.01(e), each Initial Grantor hereby irrevocably authorizes (but does not obligate) the Collateral securing Trustee, prior to the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtWorking Capital Notes Termination, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets,” “all personal property” or “All assets of the Grantor whether now existing or hereafter acquired, including all proceeds thereof” of such Initial Grantor or words of similar effect, effect or as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesInitial Grantor. Each Initial Grantor agrees to make such filings and to provide such information to the Collateral Agent Trustee promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Article 9 Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent Trustee or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Initial Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Pledge and Security Agreement (Finance of America Companies Inc.), Pledge and Security Agreement (Finance of America Companies Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agentpledges, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors on behalf of and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of its right, title or and interest in or in, to any and under all of the following assets property and properties in each case other assets, whether tangible or intangible, wherever located, and now owned by or at any time owing to, or hereafter acquired by or arising in favor of, such Grantor or in Grantor, and regardless of where located (all of which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, are collectively referred to as the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including Electronic Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinTangible Chattel Paper);
(iii) all Chattel Papercash and cash equivalents;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles (including all Intellectual Property);
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Instruments;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights and Supporting Obligations;
(xiii) all Records and all books and records pertaining to the CollateralDeposit Accounts;
(xiv) all letters of credit under which such Grantor is Commercial Tort Claims as specified from time to time in Schedule IV hereto (as the beneficiary and Letter of Credit Rightssame may be updated from time to time in accordance with the terms hereof);
(xv) all Supporting Obligations;books, records, files, correspondence, computer programs, tapes, disks and related data processing software which contain information identifying or pertaining to any of the Article 9 Collateral or any Account Debtor or showing the amounts thereof or payments thereon or otherwise necessary or helpful in the realization thereon or the collection thereof; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all accessions to, substitutions for and replacements, products and cash and non-cash Proceeds (including Stock Rights) of the foregoing (including any claims to any items referred to in this definition and all offspringsany claims against third parties for loss of, rents profits and products damage to or destruction of any or all of the foregoing and all collateral security and guarantees given by any person Collateral or for proceeds payable under or unearned premiums with respect to policies of insurance) in whatever form, including cash, negotiable instruments and other instruments for the payment of money, Chattel Paper, collateral agreements and other documents. Notwithstanding the foregoing or anything herein to the contrary, in no event shall the “Article 9 Collateral” include or the Security Interest attach to any of Excluded Assets; provided, however, that the foregoingSecurity Interest shall immediately attach to, and the Article 9 Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be an Excluded Asset.
(b) Notwithstanding anything to Each Grantor hereby irrevocably authorizes the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act Agent (or any other law, rule or regulationits designee) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant U.S. jurisdiction any financing statements (including fixture filings) statements, with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents ), the Patent Security Agreements, Trademark Security Agreements or Copyright Security Agreements, as may be necessary applicable, for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantorin Article 9 Collateral consisting of issued, without the signature of any Grantorregistered or applied for United States Patents, and naming any Grantor United States Trademarks, United States Copyrights or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerexclusive United States Licenses.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Collateral Agreement (Graftech International LTD), Collateral Agreement (Graftech International LTD)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Cash Equivalents and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all Goods
(h) all Instruments;
(viiii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xj) all Investment Property;
(xik) all Letter of Credit Rights;
(l) all Intellectual Property;
(xiim) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiin) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsSecurity Entitlements in respect thereof;
(xv) all Supporting Obligations;
(xviiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in any Securities Account or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorDeposit Account; and
(xixiv) all other Money in the possession of the Collateral Agent;
(o) all books and Records pertaining to the extent not otherwise includedArticle 9 Collateral; and
(p) all proceeds, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, the Equity Interests Article 9 Collateral will not include, this Agreement will not constitute a grant of a security interest in and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agentattach to, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor;
(yb) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates; and
(c) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of similar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.any
Appears in 2 contracts
Sources: Term Loan Guarantee and Collateral Agreement (PET Acquisition LLC), Term Loan Guarantee and Collateral Agreement (PET Acquisition LLC)
Security Interest. (a) As collateral security for the payment Secured Obligations, including any and all renewals or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)extensions thereof, each Grantor Pledgor hereby confirms the pledge delivers, pledges, transfers and grant collaterally assigns to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges Pledgee and grants to the Collateral Agent, its successors and permitted assignsPledgee, for the ratable benefit of the Secured Parties, a first priority security interest in all of such Pledgor’s right, title or and interest in or and to any and all of the following assets and properties in each case whether tangible or intangiblePledged Shares (including, wherever locatedwithout limitation, the Pledged Shares described on Schedule I hereto), and all other Equity Interests of any kind or nature of all existing and future Subsidiaries of such Pledgor, now owned or at any hereafter acquired, whether such Equity Interests are certificated or uncertificated, and each of the notes, capital stock, and all other investment property, financial assets and general intangibles of such Pledgor related to the foregoing, including, without limitation, and subject to Section 7(b), the right to vote such Equity Interests, now owned, legally, beneficially or hereafter acquired, together with all proceeds of and additions to such Equity Interests from time hereafter acquired by such Grantor to time received, receivable or otherwise distributed in respect of or in which such Grantor now has exchange for any or at any time in all of the future may acquire any rightforegoing, title including all dividends, interest distributions, cash, warrants, rights, instruments and other property, except for cash dividends or interest (but excluding other cash distributions to the extent permitted under Section 7(a); provided, however, that notwithstanding anything herein to the contrary, no Loan Party shall be required to pledge Equity Interests of any Excluded CollateralSubsidiary, to the extent such Equity Interests carry more than 65% of the total combined voting power of any “first-tier” Excluded Subsidiary (as determined for purposes of Treasury Regulations Section 1.956-2(c)) unless such Excluded Subsidiary has guaranteed Indebtedness of the Borrower or any of its Domestic Subsidiaries or pledged any of its assets or suffered a pledge of a greater percentage of its Equity Interests to secure Indebtedness of the Borrower or any of its Domestic Subsidiaries (collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Pledge Agreement (Cambium Learning Group, Inc.), Pledge Agreement (Cambium Learning Group, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any other Senior Secured Note DocumentEquity Interests in any Subsidiary of either Issuer, (c) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any Equity Interests acquired after the Closing Date in a Person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation existed at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date, to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture that is secured by a Permitted Lien), (d) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (e) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (f) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The , including providing within 30 days of any reasonable request therefor legal descriptions of real property (other than real property subject to a mortgage in favor of the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, Agent) on which timber to promptly furnish copies be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Collateral Agreement, Collateral Agreement (Verso Paper Corp.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual PropertyLetter-of-credit rights;
(xiixi) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Collateral Agent, including describing such property as "all assets" or "all property". Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Guaranteed Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, Deposit Accounts and securities accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest (other than the grant of security interest in the Pledged Stock pursuant to Section 3.01) in, and “Article 9 Collateral” shall not include, (a) any Equity Interests of any Person (except for Equity Interests of any Material Subsidiary listed on Schedule VI hereto as such schedule may be updated from time to time, that can be perfected upon the filing of a financing statement), (b) any Material Pledged Debt Securities or any other Senior Secured Note Document, the Equity Interests and other debt securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, pledged pursuant to any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with foreign pledge agreement under the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 , (c) any assets of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Subsidiary to the extent necessary to not be subject to any such financial statement requirement). In such eventthat, the Security Documents may be amended or modified, without the consent as of the Note TrusteeClosing Date, and for so long as, a pledge of such assets would violate a contractual obligation binding on such assets or such Subsidiary, (d) any assets of any Subsidiary acquired after the Collateral AgentClosing Date in accordance with the Credit Agreement if, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, and to the extent necessary to subject that, and for so long as (1) pledging such assets would violate applicable law or a contractual obligation binding on such assets or such Subsidiary and (2) such law or obligation existed at the time of the acquisition thereof or (e) any United States intent-to-use trademark applications to the Liens extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law; provided, that, upon the Security Documents such additional Equity Interests reasonable request of the Administrative Agent, Company shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (c) and (d) above, other securities. This Section 3.01(b) shall apply mutatis mutandis than those set forth in a joint venture agreement to Other Pari Passu Lien Obligationswhich the Company or any Subsidiary is a party.
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) ), continuation statements, or other filings and recordings, with respect to the Article 9 Collateral and any other collateral pledged hereunder or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, or such other information as may be required under applicable law including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filingFixtures, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral or other collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Guarantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Guarantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Chart Industries Inc), Guarantee and Collateral Agreement (Chart Industries Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xivxi) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsFixtures;
(xvxii) all Letter-of-Credit Rights but only to the extent constituting a Supporting ObligationsObligation for other Collateral as to which perfection of a security interest in such Collateral is accomplished by the filing of a UCC financing statement;
(xvixiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Assets and the term “Article 9 Collateral” shall not include any Excluded Assets.
(b) Subject to Section 3.01(e), the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect or as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement .
(d) The Collateral Agent is authorized to file with the USPTO or the USCO (or any successor office) such documents executed by each Grantor which shall be construed to make executed by each Grantor upon reasonable request of the Collateral Agent as may be necessary or advisable for the purpose of creating, attaching and perfecting the Security Interest in United States Intellectual Property of each Grantor in which a security interest has been granted by each Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. No Grantor shall be required to complete any filings governed by non-United States laws or take any other action with respect to the perfection of the Security Interests created hereby in any Intellectual Property subsisting in any non-United States jurisdiction.
(e) Notwithstanding anything to the contrary in the Loan Documents, none of the Grantors shall be required, nor is the Collateral Agent authorized, (i) to perfect the Security Interests granted by this Agreement (including Security Interests in Investment Property and Fixtures) by any means other than by (A) filings pursuant to the UCC in the office of the secretary of state (or similar central filing office) of the relevant State(s), (B) filings with the USPTO or the USCO, as applicable, with respect to Intellectual Property of the Grantors as expressly required elsewhere herein, (C) delivery to the Collateral Agent to be held in its possession of all Collateral consisting of Instruments and certificated Pledged Equity as expressly required elsewhere herein or (D) other methods expressly provided herein, (ii) to enter into any deposit account control agreement, securities account control agreement or any other Secured Party liable as a member of control agreement with respect to any limited liability company deposit account, securities account or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party Collateral that requires perfection by virtue of “control” except as otherwise set forth in this Section 3.01(e), (iii) to take any action pursuant to this Agreement (other than the actions listed in clauses (i)(A) and (C) above) with respect to any assets located outside of the United States, (iv) to perfect in any assets subject to a certificate of title statute or otherwise (v) to deliver any Equity Interests pursuant to this Agreement except as referred to expressly provided in the following sentence) shall have any of the dutiesSection 2.01, obligations Section 2.02 or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonSection 2.04.
Appears in 2 contracts
Sources: Security Agreement, Security Agreement (Tradeweb Markets Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any other Senior Secured Note DocumentEquity Interests in any Subsidiary of either Issuer, (c) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any Equity Interests acquired after the Closing Date in a Person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation exited at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date, to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture that is secured by a Permitted Lien), (d) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (e) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (f) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The , including providing within 30 days of any reasonable request therefor legal descriptions of real property (other than real property subject to a mortgage in favor of the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, Agent) on which timber to promptly furnish copies be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Collateral Agreement (Verso Sartell LLC), Collateral Agreement (Verso Paper Corp.)
Security Interest. (a) As security for the payment or performance, as the case may be, performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Secured Obligations, including each Guarantee of the Secured Obligations (other than contingent obligations)made pursuant to Article 10 of the Indenture, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired directly owned by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all InstrumentsIntellectual Property, including all Pledged Securitiesclaims for, and rights to ▇▇▇ for, past or future infringements of Intellectual Property, and all income, royalties, damages and payments now or hereafter due or payable with respect to Intellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Goods;
(x) all Instruments;
(xi) all Inventory;
(xxii) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xv) all Supporting Obligations;Money; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in (and the terms “Collateral” and “Article 9 Collateral” shall not include) any other Senior Secured Note DocumentExcluded Assets.
(b) The Issuer agrees to prepare and file such financing statements in any relevant jurisdiction as are necessary to establish and maintain a valid, enforceable and perfected security interest in the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Collateral. Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time time, but without obligation, to file in any relevant jurisdiction any financing statements (including fixture filingsFixture filings with respect to any Fixtures associated with Material Real Property that is subject to a Mortgage) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assetsassets of the Debtor, whether now owned or hereafter acquired” of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture Fixture filing, a sufficient description of the real property Material Real Property subject to a Mortgage to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Issuer shall provide reasonable written notice to the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of all such filings made by it on or about the date hereof, and, reasonably promptly thereafter, the Issuer and the Collateral Agent, as applicable, shall provide reasonable written notice to the Borrowerother party of any subsequent filings or amendments, supplements or terminations of existing filings, made from time to time thereafter and, in each case, shall provide to such other party file-stamped copies thereof within a reasonable time following receipt thereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Pledge and Security Agreement (CF Industries Holdings, Inc.), Pledge and Security Agreement (CF Industries Holdings, Inc.)
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (Aggregate Principal and all Interest in respect of the Loans and all other than contingent obligations)Borrower Obligations, each Grantor the Borrower hereby confirms and reaffirms the pledge grant under the Existing Purchase Agreement, and grant without limiting the foregoing, hereby grants, to the Collateral Agent, Agent for its successors benefit and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured PartiesParties of, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in all of the Borrower’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “Collateral”):
): all of the Borrower’s right, title, and interest now or hereafter existing in, to and under the following of the Borrower’s assets, whether now owned or existing or hereafter acquired, and wherever located (iwhether or not in the possession or control of the Borrower), and all proceeds of the foregoing: (I) all Accounts;
Receivables comprising the Receivable Pool; (iiII) the Cash Collateral Account Related Assets in respect of the Receivable Pool; (as defined III) the Collections in respect of the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
Receivable Pool; (iiiIV) all Chattel Paper;
Transaction Documents; (ivV) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials Contracts related to the purchase or import Receivable Pool; (VI) the Sale Agreement and each Hedge Agreement and, in each case, all rights and remedies of any Inventory;
the Borrower thereunder; (xVII) all Investment Property;
other assets in the Receivable Pool and Related Assets; (xiVIII) each Collection Account and the Payment Account; (IX) all Intellectual Property;
accounts, chattel paper, commercial tort claims, deposit accounts, documents, fixtures, general intangibles (xiiincluding payment intangibles), goods (including equipment and inventory), instruments, investment property, letter-of-credit rights, letters of credit, money, as-extracted collateral, oil, gas and other minerals before extraction, software, supporting obligations, insurance policies and things in action; (X) all Pledged Collateral;
(xiii) all Records rights, interests, remedies, and all books and records pertaining privileges of the Borrower relating to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing including the right to sue for past, present, or future infringement of any or all of the foregoing;
; and (xviii) all other personal property whatsoever of such Grantor; and
(xixXI) to the extent not otherwise included, all Proceedsproducts and Proceeds (the terms in clauses (I) through (XI) not otherwise defined in this Agreement, as defined in the UCC) of the foregoing clauses (I) through (X) and all accessions to and to, substitutions and replacements for for, and rents, profits, and products of any and all the of the foregoing (including insurance proceeds), and all offspringsdistributions (whether in money, rents profits securities, or other property) and products of any of the foregoing and all collateral security and guarantees given by any person collections from or with respect to any of the foregoing.
(b) Notwithstanding anything The parties hereto agree that this Agreement is not intended to constitute a novation or a termination of the obligations under the Existing Purchase Agreement and that the security interest created pursuant to the contrary in this Existing Purchase Agreement or any other Senior Secured Note Document, the Equity Interests is hereby confirmed and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only is intended to the extent that such Equity Interests continue and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Borrower Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make which amends and restates the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonExisting Purchase Agreement.
Appears in 2 contracts
Sources: Receivables Financing Agreement (ADT Inc.), Receivables Financing Agreement (ADT Inc.)
Security Interest. (a) As collateral security for the payment or performance, as the case may be, in full when due of the Obligations (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge mortgages, pledges, hypothecates, grants, assigns and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants transfers to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a lien on and a first priority security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged books and records pertaining to the Article 9 Collateral;
(xiii) all Records Goods (including, without limitation, Fixtures) and all books and records pertaining to the Collateralother personal property not otherwise described above;
(xiv) all letters the non-exclusive cable franchise referred to in that certain Decision and Order No. 352 issued by the Department of credit under which such Grantor is the beneficiary Commerce and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any Consumer Affairs of the foregoing;
(xviii) all other personal property whatsoever State of such GrantorHawaii, dated June 24, 2011; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary foregoing, no security interest shall be granted in this Agreement (i) any FCC License or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Intellectual Property to the extent that such Equity Interests and the Communications Act or other securities can secure applicable law prohibits the Senior Secured Notes and/or granting of a security interest therein or the guarantees grant of a security interest therein could result in respect thereof without Rule 3-10 the cancellation, voidance or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements invalidity of such subsidiary to be filed with the SEC Intellectual Property, (ii) any contract, General Intangible, Copyright License, Patent License or any other governmental agencyTrademark License (“Intangible Assets”). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only each case to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted grant by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each relevant Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property security interest pursuant to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnershipin such Grantor’s right, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to title and interest in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.such
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Hawaiian Telcom Holdco, Inc.), Credit Agreement (Hawaiian Telcom Holdco, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and property of such Grantor now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):), including:
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property and Licenses;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims described on Schedule IV;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding ; provided, however, that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute, and the term Article 9 Collateral shall not include, a grant of a security interest in any stock excluded from the definition of “Pledged Stock” or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsAssets.
(cb) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) The date hereof. Each Grantor hereby further authorizes the Collateral Agent is further authorized to execute and/or file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGrantor (including without limitation the Copyright Security Agreement, without the signature of any GrantorPatent Security Agreement and the Trademark Security Agreement), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The , and each Grantor agrees to execute and deliver any and all agreements, instruments, documents and papers as the Collateral Agent agrees, upon may reasonably request by for purposes of the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerforegoing.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Credit Agreement (Sportsman's Warehouse Holdings, Inc.), Guarantee and Collateral Agreement (Sportsmans Warehouse Holdings Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor Pledgor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Second-Priority Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Second-Priority Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercollection accounts, Deposit Accounts, Securities Accounts, Commodity Accounts and any cash or other assets held in such accounts and any security entitlements and other rights with respect thereto;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) loans receivable and all Instruments, including all Pledged Securities;other Payment Intangibles
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment PropertyInstruments;
(xi) all Intellectual Property (including all claims for, and rights to ▇▇▇ for, past or future infringements or violations of any Intellectual Property and all income, royalties, damages and payments now or hereafter due and payable with respect to any Intellectual Property, including damages and payments for past or future infringements or violations of any Intellectual Property);
(xii) all Pledged CollateralInventory (including reusable water containers);
(xiii) all Records and all books and records pertaining to Investment Property other than the Pledged Collateral, which is governed by Article II;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xv) all Supporting ObligationsCommercial Tort Claims, individually in excess of $3,000,000, as described from time to time on Schedule IV;
(xvi) all cash minerals, oil, gas and cash equivalentsAs-Extracted Collateral;
(xvii) all Deposit Accounts books and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of records pertaining to the foregoing;Article 9 Collateral; and
(xviii) all other personal property whatsoever substitutions, replacements, accessions, products and Proceeds (including insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of such Grantor; and
(xixsuit) and to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in any Notes Indenture Documents, this Agreement or any shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include), and the other Senior Secured Note Documentprovisions of the Notes Indenture Documents with respect to Collateral need not be satisfied with respect to, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsProperty.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesrelates and (iii) a description of Collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including describing such property as “all assets” or “all personal property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States of America (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Second-Priority Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Collateral Agreement (Second Lien) (DS Services of America, Inc.), Collateral Agreement (Second Lien) (DS Services of America, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter of Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims;
(xiii) to the extent not included in the definition of “General Intangibles”, all Records choses in action and causes of action and all other intangible personal property of any Pledgor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Pledgor, including corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Swap Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, (b) any assets with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.11 of the Credit Agreement need not be satisfied by reason of Section 5.11(g) of the Credit Agreement, (c) any Equity Interests, the pledge of which is governed by Section 3.01 hereof, (d) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, any license, contract or agreement to which such Pledgor is a party (other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. relates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property.” Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent, the Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Affinion Group, Inc.), Credit Agreement (Affinion Group, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cashChattel Paper, securities, Instruments and other property deposited or required to be deposited thereinincluding all Electronic Chattel Paper;
(iii) all Chattel PaperCommercial Tort Claims (including all Commercial Tort Claims listed on Schedule IV);
(iv) all Documentscash, Deposit Accounts and all other bank accounts;
(v) all EquipmentDocuments;
(vi) all General Intangibles, including Intellectual Property;
(vii) all Goods;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryEquipment;
(x) all Fixtures;
(xi) all Instruments;
(xii) all Investment Property;
(xixiii) all Intellectual PropertyLetter-of-Credit Rights;
(xiixiv) all Pledged Collateralmonies, whether or not in the possession or under the control of any Secured Party, or a bailee or Affiliate or branch of any Secured Party, including any cash;
(xiiixv) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of of, and all Supporting Obligations for, any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding the above or anything to the contrary else in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note TrusteeAgreement, the Collateral Agent, shall not include any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Assets.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent for the benefit of the Secured Parties at any time and from time to time to file in any relevant jurisdiction any initial financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Credit Agreement (Oscar Health, Inc.), Credit Agreement (Oscar Health, Inc.)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) all Accounts;
Goods; (iij) the Cash Collateral Account (as defined Antecip License Agreement and all proceeds thereof; and all other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) 3.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part broad grant of the Collateral securing the Note Obligations security interest set forth in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesSection 3.1, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeabove, the Collateral Agentshall not include (collectively, the “Excluded Property”) (a) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, “intent to use” trademarks at all times prior to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtfirst use thereof, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted whether by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees actual use thereof in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventcommerce, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Copyright Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor officeprovision) such documents as may be necessary for intent-to-use application shall constitute Collateral, (b) non-assignable property, licenses or contracts, which by their terms require the purpose consent of perfectingthe licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantorincluding, without limitation, Sections 9406, 9407 and 9408 of the signature of UCC), (c) any Grantor, and naming any Grantor particular asset if the pledge thereof or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest security interest therein is granted as security only and, except as otherwise required prohibited or restricted by applicable law, rule or regulation (including any requirement to obtain the consent of any governmental authority, regulatory authority or third party), provided that the foregoing exclusion of this clause (c) shall not in no way be construed (1) to apply to the extent that any described prohibition or restriction is unenforceable under Section 9406, 9407 or 9408 of the UCC or other applicable law or (2) to apply to the extent that any consent or waiver has been obtained, or is hereafter obtained, that would permit the Agent’s security interest or Lien notwithstanding the prohibition or restriction on the pledge of such asset, (d) any Excluded Accounts, including cash pledged pursuant to Permitted Liens and any Deposit Account, securities account, commodities account or other account to the extent solely and exclusively used to hold any cash pledged as a Permitted Lien, and (e) Equipment and software (and the products and proceeds thereof) subject to Permitted Liens of the type described in clause (vii) of the definition of Permitted Liens, but only to the extent and for so long as the agreements under which the equipment is financed prohibit granting a security interest therein to Lender.
3.3 Upon termination of this Agreement and repayment if full of all Secured Obligations (other than any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement), all security interest in the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in granted under this Agreement shall be construed to make terminate and all rights on the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred shall revert to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnershipBorrower. The parties hereto expressly agree that, unless the Collateral Agent shall become execute such documents and take such other steps as are reasonably necessary for Borrower to accomplish the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoforegoing, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personall at Borrower’s sole cost and expense.
Appears in 2 contracts
Sources: Loan and Security Agreement (Axsome Therapeutics, Inc.), Loan and Security Agreement (Axsome Therapeutics, Inc.)
Security Interest. (a) As a)As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including each Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all EquipmentGeneral Intangibles and Permits;
(vi) all General IntangiblesInstruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property Collateral;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xi) all Goods and Fixtures;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule III from time to time;
(xiv) the Cash Collateral Account (and all letters of credit under which such Grantor is the beneficiary cash, securities and Letter of Credit Rightsother investments deposited therein);
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit Security Entitlements in any or all of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.;
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsi) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectOwned Trademarks, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) applications in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office to register Owned Trademarks or United States Copyright Office (or any successor office) such documents as may be necessary for service marks on the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature basis of any Grantor’s “intent to use” such Owned Trademarks or service marks will not be deemed to be Collateral unless and until a “Statement of Use” or “Amendment to Allege Use” has been filed and accepted in the United States Patent and Trademark Office, whereupon such application shall be automatically subject to the security interest granted herein and naming any Grantor or the Grantors as debtors and deemed to be included in the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings (ii) that notwithstanding anything to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained contrary in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoAgreement, this Agreement shall not constitute a grant of a security interest in (A) motor vehicles or other assets subject to certificates of title the perfection of a security interest in which is excluded from the New York UCC in the relevant jurisdiction, (B) any Equity Interests other than Pledged Equity, (C) any Equipment that is subject to a purchase money lien or a capital lease permitted under the Credit Agreement to the extent the documents relating to such purchase money lien or capital lease validly prohibits such Equipment to be construed as creating subject to the Security Interest created hereby, (D) any specifically identified asset with respect to which the Administrative Agent has confirmed in writing to the Borrower its determination that the costs or other consequences (including adverse tax consequences) of providing a partnership security interest is excessive in view of the benefits to be obtained by the Lenders, (E) any General Intangible, Investment Property, Accounts, Intellectual Property Collateral, promissory notes, chattel paper, Permit or joint venture among other such rights of a Grantor arising under any contract, lease, instrument, license, or other document if (but only to the extent that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of, or result in the abandonment, invalidation or unenforceability of any right, title or interest of such Grantor in, such General Intangible, Investment Property, Accounts, Intellectual Property Collateral, promissory notes, chattel paper, Permit or other such rights in favor of a third party or under any law, regulation, permit, order, judgment or decree of any Governmental Authority and such contractual restriction is otherwise not restricted by the Credit Agreement, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such contract, lease, instrument, franchise, permit, license or other document relating to any such General Intangible, Investment Property, Intellectual Property Collateral, Accounts, promissory notes, chattel paper, Permit or other such rights of a Grantor or give any other party the right to terminate its obligations or such Grantor’s rights under such contract, lease, instrument, franchise, permit, license or other document (whether expressly in such document or otherwise under applicable law) to the extent that such right is not restricted by the Credit Agreement, provided however, that the limitation set forth in clause (E)above shall not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the New York UCC and provided further that the Proceeds from any such contract, lease, instrument or other document shall not be excluded from the definition of Article 9 Collateral or (G) Margin Stock unless the applicable requirements of Regulations T, U, and X of the Board of Governors of the Federal Reserve have been satisfied. Each Grantor shall, if requested to do so by the Administrative Agent, use commercially reasonable efforts to obtain any other Secured Party, any Grantor and/or any other Personsuch required consent that is reasonably obtainable with respect to Collateral which the Administrative Agent reasonably determines to be material.
Appears in 2 contracts
Sources: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Osi Restaurant Partners, LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant pledges, assigns, to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel PaperCommercial Tort Claims;
(iv) all DocumentsChattel Paper;
(v) all Documents;
(vi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ixx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xixii) all Intellectual Property;
(xiixiii) all Pledged Collateral;
(xiiixiv) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing. Notwithstanding the foregoing, the Security Interest shall not extend to, and the “Collateral” (and any component definition thereof) shall not include, any Excluded Property.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any the organizational identification number issued to such Grantor if required for the filing of financing statements in any relevant jurisdiction and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
(e) Notwithstanding anything to the contrary herein, no action shall be required to create or perfect a security interest in the Collateral to the extent such creation or perfection would require (i) any filing other than a filing in the United States of America, any state thereof and the District of Columbia, (ii) other actions under the laws of any jurisdiction other than the United States of America, any state thereof and the District of Columbia or (iii) that any control agreements be obtained in respect thereof.
Appears in 2 contracts
Sources: Credit Agreement (Ceridian HCM Holding Inc.), Credit Agreement (Ceridian HCM Holding Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property Collateral;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral; (xi) all Goods and Fixtures;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule 8 of the Perfection Certificate;
(xiv) all letters of credit under which such Grantor is Money, cash, cash equivalents, Deposit Accounts and the beneficiary Cash Collateral Account (and Letter of Credit Rightsall cash, securities and other investments deposited therein);
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit Security Entitlements in any or all of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note DocumentAgreement, the Equity Interests Article 9 Collateral shall not include any, and other securities of any direct or indirect subsidiary of Holdings that are owned by any no Security Interest shall be granted in any, Excluded Assets.
(b) Subject to Section 3.03(h), each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement, continuation statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number (if any) issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Security Agreement (Casa Systems Inc), Security Agreement (Casa Systems Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)of such Grantor, including the Guaranty, each Grantor hereby confirms the pledge pledges and grant collaterally assigns to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including, without limitation, all Tangible Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinElectronic Chattel Paper);
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment and Fixtures;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Intellectual Property Licenses;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all Money, cash and cash equivalents;
(xviixiii) all letters of credit, Letter-of-Credit Rights and other Supporting Obligations;
(xiv) all Deposit Accounts and Accounts, Securities Accounts, including Commodities Accounts and all cashother demand, marketable deposit, time, savings, cash management, passbook and similar accounts maintained by such Grantor with any bank or other financial institution and all monies, securities, securities entitlements, financial assets Instruments and other funds held in investments deposited or on deposit required to be deposited in any of the foregoing;
(xviiixv) all other personal property whatsoever Security Entitlements in any or all of such Grantor; andthe foregoing;
(xixxvi) all Commercial Tort Claims described on Schedule 2 hereto (as such schedule may be supplemented pursuant to the extent not otherwise included, all Proceeds, Section 3.03(j) hereof);
(xvii) all accessions to and to, substitutions and replacements for the foregoing, together with all, books and products of records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any and all of the foregoing and all offsprings, rents profits and products of General Intangibles at any time evidencing or relating to any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.; and
(bxviii) Notwithstanding to the extent not otherwise included, all Proceeds and products, whether tangible or intangible, of any and all of the foregoing, including, without limitation, resulting from any rebates or refunds, whether for taxes or otherwise, and all proceeds of such Proceeds, or any portion thereof or interest therein, and the proceeds thereof, and to the extent not otherwise included, any indemnity, warranty, or guaranty payable by reason of loss or damage to, and all supporting obligations, collateral security and guarantees given by any Person with respect to any of the foregoing; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Property; provided, however, that “Excluded Property” shall not include any Proceeds, substitutions or any other Senior Secured Note Document, the Equity Interests and other securities replacements of any direct Excluded Property unless such Proceeds, substitutions or indirect subsidiary of Holdings that are owned by any replacements would independently constitute Excluded Property.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect or being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if applicable, any organizational identification number or incorporation number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further irrevocably authorized to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor officeoffice thereof) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing perfecting or protecting confirming the Security Interest granted by each Grantor, with notice to each, but without the signature of any Grantorany, Grantor (only if such signature cannot reasonably be obtained by the Collateral Agent), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Security Interest. (a) As security for the performance by the Sellers of all the terms, covenants and agreements on the part of each Seller to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (Aggregate Capital and all Yield and all other than contingent obligations)Seller Obligations, each Grantor Seller hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in in, all of such Seller’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “CollateralSupport Assets”):
): (i) all Accounts;
Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect to such Pool Receivables, (iv) the Cash Collateral Account Lock-Boxes and Lock-Box Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Lock-Box Accounts and amounts on deposit therein, (v) all rights (but none of the obligations) of such Seller under the related Purchase and Sale Agreement, (vi) all other personal and fixture property or assets of such Seller of every kind and nature, including all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the Revolving Credit AgreementUCC) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
; provided, however, that the term “Support Assets” shall not include the Subject Receivables. The Administrative Agent (xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior the Secured Note Holders only Parties) shall have, with respect to all the Support Assets, and in addition to all the other rights and remedies available to the extent Administrative Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. Each Seller hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such Equity Interests wording may be broader in scope than the collateral described in this Agreement. Immediately upon the occurrence of the Final Payout Date, the Support Assets shall be automatically released from the Lien created hereby, and this Agreement and all rights and obligations (other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of than those expressly stated to survive such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agencytermination) of separate financial statements the Administrative Agent, the Purchasers and the other Purchaser Parties and Secured Parties hereunder shall terminate, all without delivery of any subsidiary instrument or performance of Holdings due any act by any party, and all rights to the fact Support Assets shall revert to the applicable Seller; provided, however, that promptly following written request therefor by any Seller delivered to the Administrative Agent following any such subsidiary’s Equity Interests termination, and other securities secure at the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part expense of the Collateral securing Sellers, the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject Administrative Agent shall execute and deliver to such requirement) (any Seller UCC-3 termination statements and such Equity Interests or other securities, “Excluded Note Collateral”). In documents as such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Seller shall reasonably request to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Partiesevidence such termination. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” grant of such Grantor security interest pursuant to this Section 5.05 shall be in addition to, and shall not be construed to limit or words modify, the assignment of similar effect, the Asset Interest pursuant to Section 2.01(b) and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) nothing in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement Section 2.01 shall be construed to make as limiting the Collateral Agent or rights, interests (including any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the dutiessecurity interest), obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, party under this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonSection 5.05.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (OUTFRONT Media Inc.), Receivables Purchase Agreement (OUTFRONT Media Inc.)
Security Interest. (a) As security for To secure the prompt and complete payment or performanceand performance of the Secured Obligations when due, as the case may be, in full when due (whether at stated maturity, by acceleration required prepayment, declaration, acceleration, demand or otherwiseotherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Loan Obligations (Bankruptcy Code or any similar provisions of other than contingent obligationsapplicable Laws), each Grantor hereby confirms the pledge and grant grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Administrative Agent (for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, ) a continuing security interest in all rightin, title or interest in or and Lien upon, and a right of set off against, and hereby pledges, collaterally transfers and assigns to any and all Administrative Agent (for the benefit of the following assets and properties in each case Secured Parties) as security, all personal property of such Grantor, whether tangible or intangible, wherever located, and now owned or hereafter acquired or existing, and wherever located (together with all other collateral security for the Secured Obligations at any time hereafter granted to or held or acquired by such Grantor or in which such Grantor now has or at any time in under the future may acquire any right, title or interest (but excluding any Excluded CollateralControl of Administrative Agent, collectively, the “Collateral”):), including:
(ia) All personal property and fixture property of every kind and nature including, without limitation, all Accounts;
accounts, chattel paper (ii) the Cash Collateral Account whether tangible or electronic), goods (as defined in the Revolving Credit Agreement) including inventory, equipment (and any accessions thereto), software (specifically including, but not limited to, all cashaccounting software), securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of titleinvestment property, customs receiptsdocuments, insurance certificatesDeposit Accounts, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, Commodities Accounts, money, commercial tort claims, letter-of-credit rights, supporting obligations, Tax refunds, and General Intangibles (including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoingpayment intangibles);
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests All promissory notes and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only instruments payable to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, including, without limitation, all inter-company notes from Subsidiaries and naming those set forth on Schedule 3.8 (“Collateral Notes”) and all Liens any Grantor may have, or the Grantors as debtors be entitled to, under all present and future loan agreements, security agreements, pledge agreements, deeds of trust, mortgages, guarantees, or other documents assuring or securing payment of or otherwise evidencing the Collateral Agent as secured party. The Notes, including, without limitation, those set forth on Schedule 3.8 (“Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Note Security”);
Appears in 2 contracts
Sources: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a first priority security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged Collateralother personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in, and the definitions of “Security Interest” and “Article 9 Collateral” shall not include, (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any assets (including Equity Interests), whether now owned or hereafter acquired, with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.09 of the Credit Agreement would not be required to be satisfied by reason of Section 5.09(g) of the Credit Agreement if hereafter acquired, (c) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (d) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulationprinciples of equity); provided that immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect or (f) requiring separate financial statements of any Equipment owned by any Pledgor that is subject to a purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such subsidiary to be filed with the SEC Lien is granted (or any other governmental agency). In the event that Rule 3-10 documentation providing for such Capital Lease Obligation) prohibits or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of any person other than the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Pledgors as a condition to the extent necessary to release the first-priority security interests in the shares creation of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) security interest on such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsEquipment.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor ▇▇▇▇▇▇▇ is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and (acting at the Borrower’s expense, to promptly furnish copies written direction of such filings to the Borrower.
(d) Required Lenders). The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, Pledgor without the signature of any Grantorsuch Pledgor, and naming any Grantor such Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Pledgor constituting Patents, Trademarks or Copyrights unless required by the Collateral Agent agrees, upon request by the Borrower and (acting at the Borrower’s expensewritten direction of Required Lenders), to promptly furnish copies of such filings to the Borrowerin its reasonable discretion.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Claires Stores Inc), Term Loan Credit Agreement (Claires Stores Inc)
Security Interest. (a) As security for the payment or performanceSubject to Section 3.04, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations)Obligations, each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or and interest in or and to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual PropertyLetter-of-Credit rights;
(xiix) all Pledged CollateralCommercial Tort Claims included in the Article 9 Collateral pursuant to Section 4.04;
(xiiixi) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including other than fixture filingsfilings or other filings required to be made in any real estate recording office) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement (other than a fixture filing or other filing required to be made in any real estate recording office) or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such file in any relevant jurisdiction any initial financing statements (other than fixture filings or other filings required to be made in any real estate recording office) or amendments thereto if filed prior to the Borrowerdate hereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interests granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything herein to the contrary, in this Agreement no event shall the security interest granted hereunder attach to (i) any contract or agreement to which a Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (A) the unenforceability of any right of the Grantor therein or (B) a breach or termination pursuant to the terms of, or a default under, any such contract or agreement (other than to the extent that any such term would be construed rendered ineffective pursuant to make Section 9-406, 9-407, 9-408 or 9-409 of the Collateral Agent New York UCC or any other Secured Party liable as a member applicable law or principles of equity), provided, however, with respect to any limited liability company contract or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue agreement described in clause (i) of this Agreement paragraph (d), that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or otherwise (except as referred to agreement that does not result in the following sentence) shall have any of the dutiesconsequences specified in subclauses (A) or (B) of this paragraph (d) including, obligations any Proceeds of such contract or liabilities agreement, (ii) more than 65% of a member the issued and outstanding voting Equity Interests of any limited liability company Foreign Subsidiary or as a partner (iii) any Excluded Property.
(e) Notwithstanding anything herein to the contrary, any Security Interest in any partnership. The parties hereto expressly agree that, unless Intellectual Property shall be subordinate to any license thereof (other than a license to a Loan Party) permitted under the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCredit Agreement.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Limited Brands Inc), Amendment and Restatement Agreement (Limited Brands Inc)
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturityof all Borrower Obligations, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor Borrower hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in in, all of the Borrower's right, title or and interest in or and to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Collateral”"):
(a) all Receivables, whether now owned and existing or hereafter acquired or arising, together with all Related Security and Collections with respect thereto;
(b) all loans made to the European Purchaser under the European Loan Agreement;
(c) the Originator Purchase Agreements, the European Loan Agreement, the Transfer Agreement, the European Purchaser Guaranty, the European Purchaser Security Agreement, the Servicing Agreement, the Performance Guaranty, the Credit Default Swaps and the Control Agreements (collectively, the "Collateral Agreements"), including, without limitation, (i) all Accountsrights of the Borrower to receive moneys due or to become due under or pursuant to the Collateral Agreements, (ii) all security interests and property subject thereto from time to time purporting to secure payment of monies due or to become due under or pursuant to the Collateral Agreements, (iii) all rights of the Borrower to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Collateral Agreements, (iv) all claims of the Borrower for damages arising out of or for breach of or default under the Collateral Agreements, and (v) the right to compel performance and otherwise exercise all remedies and enforce all rights under the Collateral Agreements;
(iid) the Cash Collection Accounts, the Concentration Accounts, any Credit Default Collateral Account Accounts (as defined in the Revolving Transfer Agreement), the Credit AgreementDefault Premium Reserve Account and the Collateral Accounts, including, without limitation, (i) all funds and other evidences of payment held therein and all cashcertificates and instruments, securitiesif any, Instruments from time to time representing or evidencing any of such accounts or any funds and other evidences of payment held therein, (ii) all investment property deposited and other financial assets held in, or required acquired with funds from, such accounts and all certificates and instruments from time to be deposited therein;
time representing or evidencing such investment property and financial assets, (iii) all Chattel Paper;
notes, certificates of deposit and other instruments from time to time hereafter delivered in substitution for any of the then existing accounts and (iv) all Documentsinterest, dividends, cash, instruments, financial assets, investment property and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any and all of such accounts;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviiie) all other personal property whatsoever assets of such Grantorthe Borrower, whether now owned and existing or hereafter acquired or arising, including, without limitation, all accounts, chattel paper, goods, equipment, inventory, instruments, investment property, deposit accounts and general intangibles (as those terms are defined in the UCC as in effect on the date hereof in the State of New York) in which the Borrower has any interest; and
(xixf) to the extent not otherwise includedincluded in the foregoing, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Receivables Loan Agreement (TRW Automotive Inc), Receivables Loan Agreement (TRW Automotive Inc)
Security Interest. (a) As security for the To secure payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Borrower hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a continuing security interest in and to all rightof Borrower’s rights, title or and interest in or and to any and all of the following its property of any kind or description, tangible and intangible personal property, assets and properties in each case whether tangible or intangiblerights, wherever located, and whether now existing or owned or at any time hereafter arising or acquired by such Grantor or in which such Grantor now has or at any time in and the future may acquire any rightproceeds and products therefrom, title or interest including, without limitation, the following (but excluding any Excluded Collateral, collectively, the “Collateral”):
(ia) All Accounts, including, without limitation, accounts receivable, insurance receivables and prepaid premiums, if any, and all AccountsGoods whose sale, lease or other disposition has given rise to Accounts and have been returned to, or repossessed or stopped in transit by, Borrower, or rejected or refused by an Account Debtor;
(iib) the Cash Collateral Account (as defined in the Revolving All Chattel Paper, including, without limitation, Electronic Chattel Paper and liens and lien rights on customer property; Documents; Instruments, including, without limitation, Promissory Notes; Letter of Credit Agreement) Rights and all cashproceeds of letters of credit; Supporting Obligations; Liabilities secured by real estate; Commercial Tort Claims and General Intangibles, securitiesincluding, Instruments without limitation, Payment Intangibles and other property deposited or required to be deposited thereinSoftware;
(iiic) all Chattel PaperAll Inventory, including, without limitation, raw materials, work in process, materials and finished goods leased by Borrower as lessor or held for sale or lease or furnished or to be furnished under contracts of service or used or consumed in a business;
(ivd) all Documents;
(v) All Goods and all Equipment;
(vie) all General IntangiblesAll Securities, Investment Property and Deposit Accounts;
(viif) all Goodspatents, patent applications and inventions and all issued patents in the United States of America or elsewhere and any future patents, including any reissue, continuation, division or other extension in whole or part of any such patent;
(viiig) all InstrumentsAll products of, including all Pledged Securitiesadditions and accessions to, and substitutions, betterments and replacements for the foregoing property;
(ixh) all Inventory All sums at any time credited by or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related due from Secured Party to the purchase or import of any InventoryBorrower;
(xi) all Investment Property;
All property in which Borrower has an interest now or at any time hereafter coming into the possession or under the control of Secured Party or in transit by mail or carrier to or from Secured Party or in possession of or under the control of any third party acting on Secured Party’s behalf without regard to whether Secured Party received the same in pledge, for safekeeping, as agent for collection or transmission or otherwise or whether Secured Party has conditionally released the same (xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsexcluding, including all cashnevertheless, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal foregoing property whatsoever of such GrantorBorrower which now or any time hereafter is in possession or control of Secured Party under any written trust agreement wherein Secured Party is trustee and Borrower is trustor); and
(xixj) to the extent not otherwise included, all All Proceeds (whether Cash Proceeds or Noncash Proceeds, all accessions to and substitutions and replacements for and products of any and all ) of the foregoing and all offspringsproperty, rents profits and products including, without limitation, proceeds of any insurance payable by reason of loss or damage to the foregoing property and all collateral security of eminent domain or condemnation awards. Terms used and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary not otherwise defined in this Agreement or any other Senior Secured Note Document, shall have the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for meaning given such terms in the benefit of Senior Secured Note Holders only to Michigan Uniform Commercial Code (the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency“UCC”). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements meaning of any subsidiary term defined in the UCC is amended after the date of Holdings due to this Agreement, the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities meaning of such subsidiary term as used in this Agreement shall automatically be deemed not to be part that of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that more encompassing of: (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectdefinition contained in the UCC prior to the amendment, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) definition contained in the case of a financing statement filed as a fixture filing, a sufficient description of UCC after the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borroweramendment.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Security Agreement (Health Enhancement Products Inc), Security Agreement (Health Enhancement Products Inc)
Security Interest. (a) As collateral security for the prompt payment or performance, as the case may be, and performance in full when due of the Indebtedness (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Debtor hereby pledges and grants assigns (as collateral) to the Collateral Agent, its successors and permitted assigns, for grants the ratable benefit of the Secured Parties, Agent a continuing lien on and security interest in in, all of such Debtor’s right, title or and interest in or and to any and all of the following assets and properties in each case following, whether tangible or intangible, wherever located, and now owned or at any time hereafter arising or acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and wherever located (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i1) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii2) all Chattel Paper;
(iv3) all DocumentsCommercial Tort Claims;
(v4) all EquipmentDeposit Accounts;
(vi5) all General Intangibles;
(vii6) all GoodsEquipment;
(viii7) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x8) all Documents;
(9) all computer records (“Computer Records”) and Software, whether relating to the foregoing Collateral or otherwise, but in the case of such Software, subject to the rights of any non-affiliated licensee of software and any cash collateral, deposit account or investment account established or maintained hereunder, including, without limitation, under Section 6.3 hereof,
(10) all Instruments;
(11) all Investment Property;
(xi12) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix13) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offspringsin cash or otherwise, rents profits and products of any of the property described in the foregoing clauses (a) through (i) and all collateral security liens, security, rights, remedies and guarantees given by any person claims of such Debtor with respect thereto; provided, however, that “Collateral” shall not include rights under or with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement General Intangible, license, permit or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only authorization to the extent that any such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 General Intangible, license, permit or Rule 3-16 of Regulation S-X under the Securities Act (authorization, by its terms or any other by law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with prohibits the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationassignment of, or any other lawthe granting of a security interest in, rule the rights of a grantor thereunder or regulation is adopted, which would require) the filing with the SEC (be invalid or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (unenforceable upon any such Equity Interests assignment or other securities, “Excluded Note Collateral”)grant. In such event, the Security Documents may be amended or modified, without the consent The pledge and grant of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority a security interests interest in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Proceeds shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically not be deemed to be a part give the applicable Debtor any right to dispose of any of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only andCollateral, except as may otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, be permitted herein or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCredit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Noble International, Ltd.), Credit Agreement (Noble International, Ltd.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor Debtor hereby confirms the pledge and grant grants to the American Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, Lenders and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesAgents, a continuing security interest ("Security Interest") in all right, title or and interest of Debtor in or to any and all of its personal property, including, without limitation, all of the following assets and properties types of personal property, in each case instance wherever located and whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or existing, and in which such Grantor now has or at all Proceeds and products thereof in any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):form.
(i) all Accountsof its Goods (including, without limitation, Inventory, Equipment, Fixtures (whether or not affixed to realty) and all parts, additions, replacements, substitutions and accessions thereto or therefor, in all supporting obligations thereof and in all documents and other records therefor;
(ii) the Cash Collateral Account all of its Accounts, Chattel Paper (as defined in the Revolving whether tangible or electronic), Deposit Accounts, Documents, Instruments (including, without limitation, promissory notes), Investment Property, Letter-of-Credit Agreement) and all Rights, Letters Of Credit, cash, securitiesmoney, Instruments and supporting obligations, other property deposited obligations of any kind owing to Debtor, whether or required to be deposited therein;
(iii) not arising out of or in connection with the sale or lease of goods or the rendering of services, all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsbooks, including all Pledged Securities;
(ix) all Inventory or documents of titleinvoices, customs receipts, insurance certificates, shipping documents and other written materials related records in any form evidencing or relating to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviiiiii) all of its General Intangibles (including, without limitation, payment intangibles and software);
(iv) all of its Intercompany Collateral (as hereinafter defined);
(v) all of its other personal property whatsoever of such Grantordescribed in any schedule from time to time delivered by Debtor to American Collateral Agent; and
(xix) , to the extent not otherwise included, all Proceedspayments under insurance or any indemnity, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person warranty or guaranty with respect to any of the foregoing, in each case as such terms are defined under the UCC. In addition, the Debtor hereby grants a security interest to the American Collateral Agent, for the benefit of the Lenders and the Canadian Collateral Agent and for its benefit as American Collateral Agent, in all of its claims arising out of or relating to any commercial tort claims, including, without limitation, those described on the Schedule hereto or described in any schedule from time to time delivered by Debtor to American Collateral Agent. All of the foregoing property of the Debtor shall be collectively referred to herein as the "Collateral".
(b) Notwithstanding anything Debtor hereby assigns to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the American Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with Lenders and the terms of the Credit Agreement Canadian Collateral Agent and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the for its benefit as American Collateral Agent, any Senior Secured Note Holder or any holder and all of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file its security interest in any relevant jurisdiction any financing statements Goods (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectincluding, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall but not subject the Collateral Agent or any other Secured Party limited to, or in any way alter or modifyEquipment, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Fixtures And Inventory);
Appears in 2 contracts
Sources: General Security Agreement (Westcon Group Inc), General Security Agreement (Westcon Group Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Notes Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all AccountsProperty;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAccounts;
(iii) all Chattel Paper;
(iv) all DocumentsCommercial Tort Claims listed on Schedule II hereto;
(v) all Deposit Accounts;
(vi) all Documents;
(vii) all Equipment;
(viviii) all General Intangibles;
(viiix) all GoodsInstruments;
(viiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) any letter-of-credit rights, (B) any Securitization Assets, (C) motor vehicles and other assets subject to certificates of title, (D) any Equity Interests in any Unrestricted Subsidiary or any other Senior Secured Note Document, the Equity Interests and other securities of any Subsidiary acquired pursuant to a Permitted Acquisition financed with Indebtedness incurred pursuant to Section 7.03(g) of the Senior Credit Agreement if such Equity Interests serve as security for such Indebtedness or if the terms of such Indebtedness prohibit the creation of any other lien on such Equity Interests, (E) more than 65% of the issued and outstanding voting Equity Interests of any Material Foreign Subsidiary that is a direct or indirect subsidiary of Holdings Holdings, (F) Equity Interests of any Foreign Subsidiary that is not a Material Foreign Subsidiary, (G) Equity Interests of any Subsidiary of a Foreign Subsidiary that is a direct or indirect Subsidiary of Holdings, (H) Equity Interests of any Foreign Subsidiary that are pledged pursuant to a Foreign Pledge Agreement, (I) Equity Interests of any Person that is not an indirect, wholly owned by Subsidiary of Holdings III, (J) (i) if there are outstanding Obligations under the Senior Credit Facilities, any Grantor will constitute Collateral securing Note Obligations for asset with respect to which the benefit of Senior Secured Note Holders only Administrative Agent has confirmed in writing to the extent Issuer its determination that the costs of providing a security interest in such Equity Interests and other securities can secure asset or perfection thereof is excessive in view of the benefits to be obtained by the secured parties under the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 Credit Agreement or Rule 3-16 of Regulation S-X (ii) if there are no outstanding Obligations under the Securities Act Senior Credit Facilities, any asset with respect to which the board of directors or the senior management of the Issuer has confirmed in writing to the Trustee and the Notes Collateral Agent its reasonable determination that the costs of providing a security interest in such asset or perfection thereof is excessive in view of the benefits to be obtained by the Secured Parties, (K) security interests prohibited by law or by agreements containing anti-assignment clauses not overridden by the UCC or other applicable law or (L) any General Intangible, Investment Property or other rights of a Grantor arising under any contract, lease, instrument, license or other document or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties assets subject thereto if (but only to the extent necessary to not be subject to that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such requirement) (any such Equity Interests General Intangible, Investment Property or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations rights in favor of the Note Secured Parties. For a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein shall not include negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such Equity Interests contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided, however, that the limitation set forth in clause (L) above shall remain not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral securing to the Loan Obligations extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the Uniform Commercial Code. Each Grantor shall, if requested to do so by the Trustee, use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable with respect to Collateral which the Trustee reasonably determines to be material.
(b) Each Grantor hereby irrevocably authorizes the Notes Collateral Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained .
(d) Notwithstanding anything to the contrary in this Agreement or the Indenture, none of the Grantors shall be construed required to make the Collateral Agent enter into any deposit account control agreement or securities account control agreement with respect to any other Secured Party liable as a member of any limited liability company deposit account or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personsecurities account.
Appears in 2 contracts
Sources: Security Agreement (Freescale Semiconductor Holdings I, Ltd.), Security Agreement (Freescale Semiconductor Inc)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) Notwithstanding anything ; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the contrary in this Agreement sale, licensing or disposition of all or any other Senior Secured Note Documentpart, or rights in, the Equity Interests Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and other securities effective as of any direct or indirect subsidiary the date of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for this Agreement, include the benefit of Senior Secured Note Holders only Intellectual Property to the extent that such Equity Interests and other securities can secure necessary to permit perfection of Agent’s security interest in the Senior Secured Notes and/or Rights to Payment.
3.2 Notwithstanding the guarantees broad grant of the security interest set forth in respect thereof without Rule 3-10 Section 3.1, above, the Collateral shall not include (a) nonassignable licenses or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adoptedcontracts, which would require) by their terms require the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part consent of the Collateral securing the Note Obligations in favor of the Note Secured Parties licensor thereof or another party (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesprohibition on transfer is enforceable under applicable law, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modifiedincluding, without the consent limitation, Sections 9406, 9407 and 9408 of the Note TrusteeUCC), provided further, that upon the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements termination of such subsidiaryprohibition or such consent being provided with respect to any license or contract, then the Equity Interests and other securities of such subsidiary license or contract shall automatically be deemed included in the Collateral; (b) property for which the granting of a security interest therein is contrary to be a part applicable law, provided that upon the cessation of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In restriction or prohibition, such event, property shall automatically be included in the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
Collateral; (c) Each Grantor hereby authorizes any property subject to a Permitted Lien hereunder, if the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) grant of a security interest with respect to such property pursuant to this Agreement would be prohibited by the Collateral agreement creating such Permitted Lien or any part thereof would otherwise constitute a default thereunder or create a right of termination by a party thereto (other than Borrower), provided that upon the termination and amendments thereto that (i) indicate the Collateral as “all assets” release of such Grantor Lien or words of similar effectprohibition, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) property shall automatically be included in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower Collateral; and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerExcluded Account.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (Century Therapeutics, Inc.), Loan and Security Agreement (Century Therapeutics, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, (b) any assets (including Equity Interests) with respect to which the Collateral and Guarantee Requirement or the other Senior Secured Note Documentparagraphs of Section 5.10 of the Credit Agreement need not be satisfied by reason of Section 5.10(h) of the Credit Agreement, the (c) any assets (including Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Interests) to the extent that that, as of the Closing Date, and for so long as, such grant of a security interest would violate a contractual obligation binding on such asset, (d) any Equity Interests of any person acquired by a Guarantor after the Closing Date pursuant to Section 6.04(j) of the Credit Agreement if, and to the extent that, and for so long as, (A) such grant of a security interest would violate applicable law or any contractual obligation binding upon such Equity Interests and other securities can secure (B) such law or obligation existed at the Senior Secured Notes and/or time of the guarantees acquisition thereof and was not created or made binding upon such Equity Interests in respect thereof without Rule 3-10 contemplation of or Rule 3-16 of Regulation S-X under in connection with the Securities Act (or any other law, rule or regulation) requiring separate financial statements acquisition of such subsidiary to be filed with Subsidiary (provided, that the SEC foregoing clause (B) shall not apply in the case of a joint venture, including a joint venture that is a Subsidiary) or (e) any other governmental agency). In the event that Rule 3-10 or Rule 3-16 Letter of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Credit Rights to the extent necessary any Guarantor is required by applicable law to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, apply the Security Documents may be amended or modified, without the consent proceeds of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements a drawing of such subsidiary, then the Equity Interests and other securities Letter of such subsidiary shall automatically be deemed to be Credit for a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsspecified purpose.
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as "all assets" or "all property". Each Grantor Guarantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (TRW Automotive Inc), Guarantee and Collateral Agreement (TRW Automotive Inc)
Security Interest. (a) As security for the performance by the Seller of all the terms, covenants and agreements on the part of the Seller to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (Aggregate Capital and all Yield and all other than contingent obligations)Seller Obligations, each Grantor the Seller hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in in, all of the Seller’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “CollateralSupport Assets”):
): (i) all Accounts;
Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect to such Pool Receivables, (iv) the Cash Collateral Account Lock-Boxes and Lock-Box Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Lock-Box Accounts and amounts on deposit therein, (v) all rights (but none of the obligations) of the Seller under the Purchase and Sale Agreement, (vi) all other personal and fixture property or assets of the Seller of every kind and nature, including all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the Revolving Credit AgreementUCC) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
; provided, however, that the term “Support Assets” shall not include the Subject Receivables. The Administrative Agent (xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior the Secured Note Holders only Parties) shall have, with respect to all the Support Assets, and in addition to all the other rights and remedies available to the extent Administrative Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Seller hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such Equity Interests wording may be broader in scope than the collateral described in this Agreement. Immediately upon the occurrence of the Final Payout Date, the Support Assets shall be automatically released from the Lien created hereby, and this Agreement and all rights and obligations (other securities can secure than those expressly stated to survive such termination) of the Senior Administrative Agent, the Purchasers and the other Purchaser Parties and Secured Notes and/or Parties hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under Support Assets shall revert to the Securities Act (or any other lawSeller; provided, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event however, that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted promptly following written request therefor by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due Seller delivered to the fact that Administrative Agent following any such subsidiary’s Equity Interests termination, and other securities secure at the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part expense of the Collateral securing Seller, the Note Obligations in favor of the Note Secured Parties (but only Administrative Agent shall execute and deliver to the extent necessary Seller UCC-3 termination statements and such other documents as the Seller shall reasonably request to not be subject to evidence such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Partiestermination. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” grant of such Grantor security interest pursuant to this Section 5.05 shall be in addition to, and shall not be construed to limit or words modify, the assignment of similar effect, the Asset Interest pursuant to Section 2.01(b) and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) nothing in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement Section 2.01 shall be construed to make as limiting the Collateral Agent or rights, interests (including any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the dutiessecurity interest), obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, party under this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonSection 5.05.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (OUTFRONT Media Inc.), Receivables Purchase Agreement (OUTFRONT Media Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Note Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (B) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any other Senior Secured Note DocumentEquity Interests acquired after the Closing Date in a person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation existed at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture or any equivalent exception in any other securities Note Document that is secured by a Permitted Lien), (C) any (x) property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof (other than Section 3.01(a)(iv)) and (y) Rule 3-16 Collateral solely to the extent and with respect to the obligations described in the last paragraph of Section 3.01, (D) any direct Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, or indirect subsidiary (E) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of Holdings its right, title or interest thereunder to the extent, but only to the extent, that are owned by such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only license, contract or agreement to which such Pledgor is a party (other than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. relates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property.” Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon including providing within 30 days of any reasonable request by the Borrower and at the Borrower’s expense, therefor legal descriptions of real property (other than real property subject to promptly furnish copies a Mortgage) on which timber to be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Collateral Agreement (Verso Paper Holdings LLC), Collateral Agreement (Verso Paper LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Guaranteed Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest (other than the grant of security interest in the Pledged Stock pursuant to Section 3.01) in, and "Article 9 Collateral" shall not include, (a) any Equity Interests of any Person (except for Equity Interests of any Material Subsidiary listed on Schedule VI hereto as such schedule may be updated from time to time, that can be perfected upon the filing of a financing statement), (b) any Material Pledged Debt Securities or any other Senior Secured Note Document, the Equity Interests and other debt securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, pledged pursuant to any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with foreign pledge agreement under the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 , (c) any assets of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Subsidiary to the extent necessary that, as of the Closing Date, and for so long as, a pledge of such assets would violate a contractual obligation binding on such assets or such Subsidiary, (d) any assets of any Subsidiary acquired after the Closing Date in accordance with the Credit Agreement if, and to not be subject the extent that, and for so long as (1) pledging such assets would violate applicable law or a contractual obligation binding on such assets or such Subsidiary and (2) such law or obligation existed at the time of the acquisition thereof or (e) any United States intent-to-use trademark applications to any such financial statement requirement). In such eventthe extent that, and solely during the period in which, the Security Documents may be amended grant of a security interest therein would impair the validity or modifiedenforceability of such intent-to-use trademark applications under applicable federal law; provided, without that, upon the consent reasonable request of the Note Trustee, the Collateral Agent, Domestic Borrower shall, and shall cause any Senior Secured Note Holder applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (c) and (d) above, other than those set forth in a joint venture agreement to which Holdings or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsSubsidiary is a party .
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) ), continuation statements, or other filings and recordings, with respect to the Article 9 Collateral and any other collateral pledged hereunder or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, or such other information as may be required under applicable law including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filingFixtures, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral or other collateral granted under this Agreement, including describing such property as "all assets" or "all property". Each Grantor Guarantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Domestic Guarantee and Collateral Agreement (Dresser-Rand Group Inc.), Domestic Guarantee and Collateral Agreement (Dresser-Rand Group Inc.)
Security Interest. (a) As collateral security for the payment or performanceCompany’s obligations pursuant to this Note, as the case may beCompany hereby pledges, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge assigns and grant transfers to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Holder a first priority security interest in all and collateral assignment of the Company’s right, title or and interest in or and to any and all of the following assets Company’s tangible and properties in each case intangible property, including the following, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor now due, or in which such Grantor now the Company has an interest, or hereafter, at any time in the future may acquire future, acquired, arising or to become due, or in which the Company obtains an interest, and all products, proceeds, replacements, substitutions and accessions of or to any right, title or interest of the following (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accountsequipment and all warranties, express or implied, related thereto;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) all accounts and all cash, securities, Instruments and other property deposited or required to be deposited thereinaccounts receivable;
(iii) all Chattel Paperinventory;
(iv) all Documentscontract rights;
(v) all Equipmentlicenses, permits and approvals by any governmental authority;
(vi) all General Intangiblesgeneral intangibles (including payment intangibles, software, trademarks, patents, copyrights or other intellectual property rights of the Company);
(vii) all Goodsequipment (including all machinery, furniture, and fixtures);
(viii) all Instruments, including all Pledged Securitiesgoods;
(ix) all Inventory chattel paper (whether tangible or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventoryelectronic);
(x) all Investment Propertyfixtures;
(xi) all Intellectual Propertyinvestment property (including all financial assets, certificated and uncertificated securities, securities accounts and security entitlements);
(xii) all Pledged Collateralletter-of-credit rights;
(xiii) all Records rights under judgments and all books and records pertaining to the Collateralcommercial tort claims;
(xiv) all letters books, records and information relating to the Collateral and/or to the operation of credit under the Company’s business and all rights of access to such books, records and information and all property in which such Grantor is the beneficiary books, records and Letter of Credit Rightsinformation are stored, recorded and maintained;
(xv) all Supporting Obligationsinsurance proceeds, refunds and premium rebates, including proceeds of fire and credit insurance, whether any of such proceeds, refunds and premium rebates arise out of any of the foregoing or otherwise;
(xvi) all cash liens, guaranties, rights, remedies and cash equivalents;privileges pertaining to any of the foregoing; and
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for proceeds and products of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of, each of the foregoing, and any and all proceeds of any of insurance, indemnity, warranty or guaranty payable to the foregoing and all collateral security and guarantees given by any person Company from time to time with respect to any of the foregoing.
(b) Notwithstanding anything herein to the contrary contrary, in this Agreement or any other Senior Secured Note Documentno event shall the Collateral include, and the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary Company shall automatically be deemed not to be part have granted a security interest in, any of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesCompany’s right, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests title and interest in the shares issued and outstanding equity interests of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsLlama Productions LLC.
(c) Each Grantor hereby The Company authorizes the Collateral Agent at any time and from time to time Holder to file or cause to be filed one or more financing statements, amendments to financing statements, continuations to financing statements, in any relevant jurisdiction any lieu financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectstatements, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction other similar filings with any filing or recording office for the filing purpose of any financing statement perfecting or amendment, including (x) whether such Grantor is an organization, continuing the type perfection of organization and any organizational identification number issued to such Grantor and (y) or otherwise establishing ▇▇▇▇▇▇’s security interest in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerCollateral.
(d) The So long as this Note remains outstanding, the Company agrees to (i) do, observe and perform or cause to be done, observed and performed all of its obligations and all matters and things necessary to be done, observed and performed for the purpose of maintaining the Collateral Agent is in good condition, including complying with and maintaining in effect all licenses, approvals and permits and all contracts and contract rights related to the Collateral and (ii) upon the reasonable request of Holder, execute and deliver such further authorized instruments and do or cause to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) be done such documents further acts as may be necessary for or advisable to carry out the purpose intent and purposes of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor this Note with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Secured Convertible Note (Genius Brands International, Inc.)
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Aggregate Capital and grant to the Collateral Agent, its successors and permitted assigns all Interest in respect of the security interest of Loans and all other Borrower Obligations, the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Borrower hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a valid, continuing and perfected first priority security interest in in, all of the Borrower’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (i) all Accounts;
Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect to such Pool Receivables, (iv) the Cash Collateral Account Lock-Boxes and Collection Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Collection Accounts and amounts on deposit therein, (v) all rights (but none of the obligations) of the Borrower under the Purchase and Sale Agreement, (vi) all other personal and fixture property or assets of the Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter of credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the Revolving Credit AgreementUCC) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
. The Administrative Agent (xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties Parties) shall have, with respect to all the Collateral, and in accordance with addition to all the terms other rights and remedies available to the Administrative Agent (for the benefit of the Credit Agreement Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Borrower hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Agreement. In Immediately upon the event that Rule 3-10 or Rule 3-16 occurrence of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor Final Payout Date or words of similar effect, and (ii) contain in the information required by Article 9 event the Purchase Price of a Receivable has been reduced to zero and the credit for such reduction has been applied pursuant to Section 3.3 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organizationPurchase and Sale Agreement, the type of organization and any organizational identification number issued to such Grantor and (y) Collateral, in the case of a financing statement filed as a fixture filingclause (i), a sufficient description or the applicable Receivable and any Related Rights solely with respect to such Receivable, in the case of clause (ii), shall be automatically released from the lien created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the real property to which such Collateral relates. Each Grantor agrees to provide such information Administrative Agent, the Lenders and the other Credit Parties hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral Agent shall revert to the Borrower; provided, however, that promptly upon following written request. The Collateral Agent agrees, upon request therefor by the Borrower delivered to the Administrative Agent following any such termination, and at the expense of the Borrower’s expense, to promptly furnish copies of such filings the Administrative Agent shall execute (if applicable) and deliver to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent Borrower UCC-3 termination statements and Trademark Office or United States Copyright Office (or any successor office) such other documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, shall reasonably request to promptly furnish copies of evidence such filings to the Borrowertermination.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. Section 5.8
(a) As collateral security for the payment or performance, as the case may be, performance in full when due (whether at stated maturity, by acceleration or otherwise) of all the obligations of the Loan Obligations Company and CC AT under this Agreement until the earlier of (other than contingent obligations)1) the Closing, each Grantor hereby confirms (2) in the pledge event of termination of this Agreement under Article VIII herein, the Company’s and grant to the Collateral Agent, its successors and permitted assigns CC AT’s repayment of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured PartiesDeposit owed to Buyer, and as security (3) termination of this Agreement for failure to pay the payment or performance, as Deposit under Section 2.5(c)(i)):
(i) the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Company hereby pledges and assigns to Buyer, and grants to the Collateral Agent, its successors Buyer a Lien on and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in all rightin, title or interest in or and a right to set off against, any and all of the Company’s right, title and interest in and to all of the following assets tangible and properties in each case whether tangible or intangibleintangible personal property, wherever located, and whether now existing or hereafter arising or acquired from time to time (collectively, the “Company Collateral”): all cash, currency, and cash equivalents, all Accounts, all Inventory, all Contract rights, all Equipment, all Goods, all Instruments (including promissory notes), all Chattel Paper (including Electronic Chattel Paper and Tangible Chattel Paper), all Fixtures, all Commercial Tort Claims (including Proceedings), all Deposit Accounts, all Documents, all General Intangibles, all Permits, all Intellectual Property and software, owned or at any time hereafter acquired controlled by such Grantor the Company as well as all licenses to third party Intellectual Property and software held by the Company, all Investment Property, all Payment Intangibles, all Securities Accounts and Commodities Accounts, all Supporting Obligations, all books and records related to the foregoing, all Accessions, and to the extent not otherwise included above, all Proceeds (including insurance Proceeds), products, accessions, rents and profits of or in which such Grantor now has or at respect of any time in of the future may acquire foregoing; and
(ii) CC AT hereby pledges and assigns to Buyer, and grants to Buyer a Lien on and continuing security interest in, and a right to set off against any and all of CC AT’s right, title and interest in and to all of the following, wherever located, and whether now existing or interest hereafter arising or acquired from time to time (but excluding any Excluded collectively, the “Pledged Collateral”; together with the Company Collateral, collectively, the “Collateral”):
(i) ): all Accounts;
(ii) the Cash Collateral Account (as defined Equity owned or hereafter acquired by CC AT in the Revolving Credit Agreement) Company including, without limitation, the certificates representing such Equity, if certificated, any interest of CC AT on the books and records of the Company, and any securities entitlements relating to the Equity, all dividends, distributions, cash, securitieswarrants, Instruments rights, options, instruments, securities and other property deposited or required proceeds from time to be deposited therein;
(iii) time received, receivable or otherwise distributed in respect of or in exchange for any of or all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsof the Equity and any other warrant, including all Pledged Securities;
(ix) all Inventory right or documents of title, customs receipts, insurance certificates, shipping documents and option or other written materials related agreement to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in acquire any of the foregoing;
(xviii) , all management rights, all voting rights, any interest in any capital account of CC AT in the Company on account of the Equity, all rights as and to become a member or stockholder of the Company as a holder of such Equity, all rights of CC AT under any shareholder, equityholder or voting trust agreement or similar agreement relating to the Equity, all of CCAT’s right, title and interest relating to the Equity, as a member, unit holder, or manager, to any and all assets or properties of Company, all other personal rights, powers, privileges, interests, claims and other property whatsoever in any manner arising out of such Grantor; and
(xix) or relating to any of the foregoing, all Accessions, and to the extent not otherwise includedincluded above, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offspringsproducts, accessions, rents and profits and products of any or in respect of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(biii) Notwithstanding anything to the contrary Capitalized terms used in this Section 5.7 that are not otherwise defined in this Agreement or any other Senior Secured Note Documentshall have the meanings ascribed to such terms in the Uniform Commercial Code as in effect from time to time in the State of New York (the “UCC”), the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that except as such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees term may be used in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed connection with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part perfection of the Collateral securing and then the Note Obligations applicable jurisdiction with respect to such affected Collateral shall apply.
(iv) This Agreement creates a valid Lien and security interest in favor of the Note Secured Parties Buyer in the (but only to the extent necessary to not be subject to such requirementA) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent Company Collateral of the Note TrusteeCompany and (b) the Pledged Collateral of CC AT and, the when properly perfected by filing, shall constitute a valid and perfected, Lien and security interest in such Collateral Agent, any Senior Secured Note Holder (including all uncertificated equity consisting of partnership or any holder limited liability company interests that do not constitute Securities).
(b) Each of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests Company and CC AT acknowledge and agree that there are no restrictions in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, its organizational documents or any other law, rule or regulation is adopted, agreement which would permitlimit or restrict (i) such subsidiary’s Equity Interests the grant of a Lien and other securities security interest in the Collateral pursuant to secure this Agreement, (ii) the Senior Secured Notes and/or the related guarantees in excess perfection of the amount then pledged without Lien and security interest in the filing with Collateral or (iii) the SEC exercise of any of Buyer’s remedies (or any other governmental agency) including all voting and management rights in respect of separate financial statements the Pledged Collateral), in respect of such subsidiary, then the Equity Interests Lien and other securities of such subsidiary shall automatically be deemed to be a part of security interest in the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsas contemplated by this Agreement.
(c) Each Grantor The Company and CC AT, as applicable shall cause the and Lien security interests granted under this Section 5.7 to be perfected in Buyer as of the date hereof and continuing until the earlier of (1) the Closing, (2) the return of the Deposit in full to the Buyer, and (3) termination of this Agreement for failure to pay the Deposit under Section 2.5(c)(i). As of the date hereof CC AT shall deliver to Buyer stock certificates evidencing the Equity, if certificated, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank. The Company hereby irrevocably authorizes the Collateral Agent Buyer at any time and from time to time to file in any relevant jurisdiction applicable filing office prescribed, any financing statements (including fixture filingscontinuation statements) or amendments thereof or supplements thereto or other forms or instruments, or similar filing (i) describing the Company Collateral in the same manner as described herein or contains an indication or description of the Company Collateral that describes such property in any other manner as the Buyer may determine, including without limitation, “all personal property, whether now owned or hereafter acquired”, or “all assets, whether now owned or hereafter acquired” or words of similar effect (or as being of equal or lesser scope or with greater detail) or (ii) that contains any information required by the UCC as in effect from time to time as adopted by any relevant jurisdiction for the sufficiency or filing office acceptance. CC AT hereby irrevocably authorizes Buyer at any time and from time to time to file in any applicable filing office prescribed, any financing statements (including continuation statements) or amendments thereof or supplements thereto, or other forms or instruments or similar filing (A) describing the Pledged Collateral in the same manner as described herein or contains an indication or description of the Pledged Collateral that describes such property in any other manner as the Buyer may determine or (B) that contains any information required by the UCC as in effect from time to time as adopted by any relevant jurisdiction for the sufficiency or filing office acceptance.
(d) Automatically upon the earlier of (1) the Closing, (2) the return of the Deposit in full to the Buyer, and (3) termination of this Agreement for failure to pay the Deposit under Section 2.5(c)(i), all security interests, liens, mortgages, pledges, charges and other encumbrances granted to the Buyer in connection with this Agreement shall be automatically released and terminated without any further action by any Person; provided, however, in the event that the security interests are released pursuant to this Section 5.7(d) in connection with the Closing, this release shall only apply with respect to the security interests granted by CC AT. At the expense of the Buyer, the Buyer will promptly upon such termination deliver any such UCC-3 termination statements or other release documents as are reasonably required to release the security interests and liens previously filed by the Buyer or on the Buyer’s behalf under this Agreement. Upon such automatic release and termination of the security interests and liens, the Buyer hereby authorizes the Member (or any designee of the Member) to file those certain UCC-3 termination statements and any other lien release or terminations instruments reasonably necessary to release the security interests and liens previously filed by the Buyer or on the Buyer’s behalf under this Agreement.
(e) CC AT has caused the Company to amend or to otherwise modify its organizational documents, books, records, and related agreements, documents, and instruments, as applicable, to reflect the rights and interests of the Buyer hereunder, and to the extent required to enable and empower the Buyer to exercise and enforce its rights and remedies hereunder in respect of the Pledged Collateral. The Company, as issuer of the Equity, has by execution of this Agreement, acknowledged, consented and agreed that the Company may, and the other Members and the board of directors of the Company, on behalf of Company, has by written consent authorized CC AT to, ▇▇▇▇▇ ▇ ▇▇▇▇ and security interest in the Pledged Collateral pursuant to this Agreement, together with all rights accompanying such Lien and security interest as provided in this Agreement and under applicable Law.
(f) The Company and CC AT further agree upon the request of ▇▇▇▇▇, to take any and all other actions as Buyer may determine to be reasonably necessary for the attachment, perfection and first priority of Buyer’s security interest in any and all of the Collateral, including without limitation, (i) executing and delivering and where appropriate filing financing statements and amendments relating thereto under the UCC to the extent, if any, that the Company’s or CC AT’s signature thereon is required therefor and (ii) complying with any provision of any statute, regulation or treaty as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of Buyer to enforce, its Lien and security interest in such Collateral.
(g) The Company and CC AT acknowledge and agree that the Buyer shall have in addition to the rights and remedies provided herein, in any other document related to the transactions described herein, or by applicable Law, (including, but not limited to, levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, may, with or without judicial process, notice, demand or the aid and assistance of others, all of which are irrevocably waived by the Company and CC AT, take any action with respect to the Collateral to protect its Lien and security interest in such Collateral. In order to permit the Buyer to enforce its Lien and security interest in the Pledged Collateral, CC AT hereby grants to Buyer a proxy to exercise all voting rights with respect to the Equity that CC AT now owns or any part thereof hereafter acquires. This proxy is valid and amendments thereto that (i) indicate irrevocable. This proxy runs with the Collateral as “Equity and binds all assets” future owners of such Grantor or words of similar effectthe Equity. This proxy also runs with the Lien and security interest granted herein, and (ii) contain the information required may be exercised by Article 9 any assignee of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowersecurity interest.
(dh) The Collateral Agent is further authorized to file with Notwithstanding the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoforegoing, this Agreement shall not continue to be construed effective or shall be automatically reinstated, as creating the case may be, if at all or any of the obligations under this Agreement or the transactions contemplated herein, in whole or in part, are rescinded or must otherwise be restored for any reason, including as a partnership preference, fraudulent conveyance, or joint venture among otherwise under any debtor relief Law. CC AT and Company acknowledge and agree that in the Collateral Agentevent all or any part of the obligations under this Agreement or the transactions contemplated herein are rescinded or must be restored for any reason, all reasonable costs and expenses (including, without limitation, any other Secured Partyreasonable legal fees and disbursements), any Grantor and/or any other Personincurred by the Buyer in defending and enforcing such reinstatement shall be deemed to be included as a part of the obligations secured by the Collateral.
Appears in 1 contract
Sources: Equity Purchase Agreement (Cannabist Co Holdings Inc.)
Security Interest. (a) As security for To secure the prompt and complete payment or performanceand performance of the Secured Obligations when due, as the case may be, in full when due (whether at stated maturity, by acceleration required prepayment, declaration, acceleration, demand or otherwiseotherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Loan Obligations (Bankruptcy Code or any similar provisions of other than contingent obligationsApplicable Law), each Grantor hereby confirms the pledge and grant grants (subject to the last paragraph of this Section 2.1) to Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Agent (for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties) a continuing security interest in, a security interest in all rightLien upon, title or interest in or and a right of set off against, and hereby pledges, collaterally transfers and assigns to any and all Collateral Agent (for the benefit of the following assets and properties in each case Secured Parties) as security, all personal property of such Grantor, whether tangible or intangible, wherever located, and now owned or hereafter acquired or existing, and wherever located (together with all other collateral security for the Secured Obligations at any time hereafter granted to or held or acquired by such Grantor or in which such Grantor now has or at any time in under the future may acquire any right, title or interest (but excluding any Excluded CollateralControl of Collateral Agent, collectively, the “Collateral”):), including:
2.1.1. All personal property and fixture property of every kind and nature including, without limitation, all accounts, chattel paper (i) whether tangible or electronic), goods (including inventory), equipment (and any accessions thereto), software (specifically including, but not limited to, all accounting software), Instruments, investment property, documents, Deposit Accounts, Securities Accounts, Commodities Accounts, Custodial Accounts, money, commercial tort claims, letter-of-credit rights, supporting obligations, Tax refunds, and General Intangibles (including payment intangibles);
2.1.2. All promissory notes and other Instruments payable to any Grantor, including, without limitation, all inter-company notes from Subsidiaries and those set forth on Schedule 3.8 (ii) the Cash “Collateral Account (as defined in the Revolving Credit AgreementNotes”) and all cashLiens under all present and future loan agreements, securitiessecurity agreements, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentspledge agreements, including all Pledged Securities;
(ix) all Inventory or documents deeds of titletrust, customs receiptsmortgages, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationguarantees, or any other law, rule documents assuring or regulation is adopted, which would require) the filing with the SEC (securing payment of or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of otherwise evidencing the Collateral securing the Notes (“Collateral Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note CollateralSecurity”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.;
Appears in 1 contract
Sources: Pledge, Assignment, and Security Agreement (Allied Capital Corp)
Security Interest. (a) 3.1. As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the Payment Dates or otherwise) of all the Secured Obligations and in order to induce Lender to make the Loan Obligations (upon the terms and subject to the conditions of this Agreement, the Notes, and the other than contingent obligations)Loan Documents, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Lender a security interest in and Lien upon all of such Grantor’s right, title or and interest in or in, to any and all under each of the following assets and properties in each case following, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and wherever located (but excluding any Excluded Collateral, collectively, the “Collateral”):
(ia) all AccountsAll Receivables;
(iib) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all All Equipment;
(vic) all All Fixtures;
(d) All General Intangibles;
(viie) all GoodsAll Intellectual Property;
(viiif) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any All Inventory;
(xg) all All Investment Property;
(xih) all Intellectual PropertyAll Deposit Accounts;
(xiii) all Pledged CollateralAll Cash;
(xiiij) all Records All other Goods and all books tangible and records pertaining to the Collateral;
(xiv) all letters intangible personal property of credit under which such Grantor is the beneficiary whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, such Grantor and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorwherever located; and
(xixk) to To the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of each of the foregoing. Notwithstanding the foregoing, in no event shall the term Collateral include (i) any Equipment or accessions, additions or improvements thereto, any replacement thereof or Proceeds thereof to the extent prohibited by the agreement (for as long as the agreement or prohibition is in effect) pursuant to which such Equipment was acquired or financed, (ii) any pledges or deposits constituting Permitted Liens to the extent prohibited by the agreement (for as long as the agreement or prohibition is in effect) under which the pledge or deposit is made and (iii) any of the foregoing and all collateral security and guarantees given by any person with respect to any outstanding capital stock of the foregoing.
a controlled foreign corporation (b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests as defined in the shares Internal Revenue Code of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt1986, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is as amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of 65% of the amount then pledged without the filing with the SEC (or any other governmental agency) voting power of separate financial statements all classes of capital stock of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed controlled foreign corporation entitled to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsvote.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Senior Loan and Security Agreement (Occam Networks Inc/De)
Security Interest. (a) As security for To secure the payment or performancetimely repayment of the principal of, as and interest on, the case may beAdvances, in full and all other Obligations of the Borrower to any Secured Party, including, without limitation, the Aggregate Participation Interest, and the prompt performance when due (whether at stated maturity, by acceleration or otherwise) of all covenants of the Loan Obligations (Borrower hereunder and under any other than contingent obligations)Transaction Document, each Grantor hereby confirms whether now or hereafter existing or arising, due or to become due, direct or indirect, the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Borrower hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a continuing, first priority security interest in in, and assignment of, all of the Borrower’s rights, titles and interests in, to and under all of the following, whether now or hereafter owned, existing or arising: all assets of the Borrower, including but not limited to all right, title and interest of the Borrower in the Pledged Policies (unless and until such Policies are abandoned or sold as provided by Section 2.7 of this Loan Agreement) and proceeds thereof; all accounts receivable, notes receivable, claims receivable and related proceeds including but not limited to, cash, loans, securities, accounts; contract rights; the contracts with the Custodian and/or the Securities Intermediary; the Collection Account, the Payment Account, the Escrow Account, the Policy Account and any other account of the Borrower (excluding only the Borrower Account); reserve accounts; escrow agreements and related books and records; the rights under any purchase agreements relating to such Policies; all data, documents and instruments contained in the Collateral Packages; and such other assets, tangible or intangible, real or personal, as reasonably may be required by the Administrative Agent to fully secure any Advances contemplated herein. All of the rights and assets described in the previous sentence are herein referred to collectively as “Collateral”; provided, however, that this definition of “Collateral” does not limit any other collateral that may be pledged to secure the Advances under any other Transaction Document.
(b) The Borrower shall file such financing statements, and execute and deliver such agreements, certificates and documents, and take such other actions, as the Administrative Agent requests in order to perfect, evidence or protect the security interest granted pursuant to Section 2.6(a), including without limitation delivering a collateral assignment in respect of each Pledged Policy subject to this Loan Agreement, naming the Administrative Agent, on behalf of the Lenders, as the collateral assignee, filed with, and acknowledged to have been filed by, the applicable Issuing Insurance Company; provided, that the foregoing collateral assignment shall not apply to the portion of the face amount that is retained by a third party under any Retained Death Benefit Policy. On or prior to each Advance Date (other than the Advance Date for the Initial Advance), the Borrower shall deliver or cause to be delivered completed but unsigned Change Forms for the Subject Policies to the Securities Intermediary. Within two (2) Business Days of the making of the Initial Advance Date, the Borrower shall deliver or cause to be delivered completed but unsigned Change Forms for the Subject Policies to the Securities Intermediary. The Borrower shall cause the Securities Intermediary to execute all such Change Forms in blank to be held by the Securities Intermediary. If an Issuing Insurance Company updates its Change Forms, at the request of the Administrative Agent, the Borrower shall deliver or cause to be delivered completed but unsigned updated Change Forms for the related Pledged Policies within five (5) Business Days of such request. The Borrower shall cause the Securities Intermediary to execute such Change Forms in blank to be held by the Securities Intermediary. The Borrower grants to the Administrative Agent, as its irrevocable attorney-in-fact and otherwise, the right, in the Administrative Agent’s sole discretion following acceleration or maturity of the Obligations of the Borrower under this Loan Agreement, to complete or direct the Securities Intermediary to complete and send any and all Change Forms previously delivered to it by or on behalf of the Borrower or otherwise obtained by the Administrative Agent, to the applicable Issuing Insurance Companies. The Borrower hereby acknowledges that the foregoing grant has been coupled with an interest. The Borrower hereby authorizes the Administrative Agent to file such financing statements as the Administrative Agent determines are necessary or advisable to perfect such security interest without the signature of the Borrower, provided however, notwithstanding any other provision of any Transaction Document, the Administrative Agent shall have no duty or obligation to file such financing statements, continuation statements or amendments thereto; and provided, further, that if the Administrative Agent notifies the Borrower in writing that it intends to file any financing statements, continuation statements or amendments thereto but fails to do so, and does not in connection therewith timely instruct the Borrower to file such item or items, then the Borrower shall not be and shall not be deemed to be in breach of any representation or warranty concerning the perfection of related or affected security interests if such breach is a direct result of the Administrative Agent’s failure to file such item or items and such filing would have perfected such security interests. The Borrower hereby appoints the Administrative Agent as the Borrower’s irrevocable attorney-in-fact, with full power and authority to take any other action to sign or endorse the Borrower’s name on any Collateral, and to enforce or collect any of the Collateral following acceleration of the obligations of the Borrower under this Loan Agreement in relation to an uncured Event of Default. The Borrower hereby acknowledges that the foregoing appointments of the Administrative Agent as the Borrower’s irrevocable attorney-in-fact has been coupled with an interest. The Borrower hereby ratifies and approves all acts of such attorney undertaken or performed consistent with the foregoing and all Applicable Law, and agrees that the Administrative Agent will not be liable for any act or omission with respect thereto, except to the extent that such act or omission constitutes gross negligence, fraud or willful misconduct on the part of the Administrative Agent. Subject to the provisions of the UCC and the rights of any purchaser (including any Lender) of the Collateral in connection with the Lenders’ exercise of remedies, none of the foregoing provisions and undertakings constitute or shall be deemed to constitute waiver by the Borrower of its rights, title and interest in or to any such Collateral or the proceeds thereof that are in excess of its payment obligations hereunder and all of under the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoingLender Notes.
(bc) Notwithstanding anything Upon the abandonment of a Pledged Policy or upon the receipt by the Lenders of the portion of the related sale proceeds to which the contrary Lenders are entitled in accordance with terms of this Loan Agreement or any other Senior Secured Note Documentafter the sale of a Pledged Policy, in each case, pursuant to Section 2.7, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part security interest of the Collateral securing the Note Obligations Administrative Agent in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Pledged Policy for the benefit of the Loan Secured Parties in accordance with shall be released. Upon the terms repayment of all of the Credit Agreement Borrower’s Advances then outstanding and all other Obligations (including, without limitation, the Aggregate Participation Interest) and termination of all Commitments and this Loan Agreement, the security interest of the Administrative Agent in the Collateral for the benefit of the Secured Parties shall be released. In the event that Rule 3-10 The Administrative Agent agrees to file, promptly upon request, such partial releases or Rule 3-16 of Regulation S-X under assignments, as applicable, request the Securities Act is amended, modified or interpreted by the SEC Intermediary to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only deliver to the extent necessary Borrower all related Change Forms delivered to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file it in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request blank by the Borrower and at the Borrower’s expense, pursuant to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any GrantorSection 2.6(b), and naming any Grantor or the Grantors to take such other actions as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, shall reasonably request in order to promptly furnish copies of evidence any such filings to the Borrowerrelease.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Loan and Security Agreement (Imperial Holdings, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each the Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all of the Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such the Grantor or in which such the Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinDeposit Accounts;
(iii) all Chattel PaperDocuments;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(v) the Collection Account;
(vi) the Debt Service Account;
(vii) all GoodsMedia Revenues;
(viii) all Instruments, including all Pledged Securitiesthe Grantor’s rights in respect of Local Media Contracts;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryMembership Rights;
(x) all Investment PropertyExpansion Revenues;
(xi) all Intellectual PropertyTicket Rights;
(xii) all Pledged CollateralEmployee Contracts;
(xiii) all Records Instruments;
(xiv) all Investment Property that shall arise from any investment from time to time in the Debt Service Account;
(xv) all money market deposit accounts maintained with the Collateral Agent for the purpose of investing amounts deposited in the Collection Account and the Debt Service Account;
(xvi) all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given to the Grantor by any person Person with respect to any of the foregoing; in each case, except that the Article 9 Collateral shall not include (w) any Investment Property other than Investment Property pursuant to clause (xiv) above, (x) any property or assets to the extent such item (other than any item constituting Core Collateral) has been assigned, pledged or otherwise transferred by the Grantor to any Person (other than the Secured Parties) in a transaction that is not prohibited by the Credit Agreement or any other Loan Document, (y) any Commingled Assets, and (z) any United States “intent to use” trademark application or intent-to-use service ▇▇▇▇ application filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity of, or render void or voidable or result in the cancellation of the Grantor’s right, title or interest therein or any Trademark issued as a result of such application under applicable federal law, or any Trademark or other rights therein or thereto if the grant of a lien on or security interest in such Trademark would result in the cancellation or voiding of such Trademark or such rights. This Agreement shall not constitute a grant of a security interest in any property or assets to the extent that, and for so long as, such grant of a security interest is prohibited by any requirement of law, rule or regulation, requires a consent not obtained of any Governmental Authority pursuant to any such law, rule or regulation, is prohibited by, or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property or assets or, in the case of Equity Interests in any Person that is not a Subsidiary of the Borrower, to the extent, and for so long as, such grant requires, pursuant to the constituent documents of such Person or any related joint venture, shareholder or similar agreement binding on any shareholder, partner or member of such Person, the consent of any governing body of or Persons (other than of the Borrower or any of its Affiliates) holding Equity Interests in such Person and such consent shall not have been obtained, except in each case to the extent that such requirement of law, rule or regulation or the term in such contract, license, agreement, instrument or other document or constituent documents, shareholder or similar agreement providing for such prohibition, breach, default or termination or requiring such consent is ineffective under applicable law, rule or regulation.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each The Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction in the United States any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such the Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each The Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office or agency in the United States) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each the Grantor, without the signature of any the Grantor, and naming any the Grantor or the Grantors as debtors debtor and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any the Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. Subject to the prior collateral assignment and pledge of the Collateral to the Lenders pursuant to the Securities Purchase Agreement and the rights of the Lenders pursuant to the Subordination, (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations)Obligations, each Grantor hereby assigns and pledges and grants to the Collateral AgentNotemachine, its successors and permitted assigns, for the ratable benefit of the Secured Partiesand hereby grants to Notemachine, its successors and assigns, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all AccountsPledged Securities;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAccounts;
(iii) all Chattel Paper;
(iv) all Documentscash and Deposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all GoodsInstruments;
(viiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights;
(xiii) all Records and Commercial Tort Claims;
(xiv) all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing; provided, however, that the Collateral shall not include, and in no event shall the security interest granted under this Section 4.01 attach to (A) any lease, license, contract, property rights or agreement to which any Grantor is a party (or to any of its rights or interests thereunder) if the grant of such security interest would constitute or result in either (x) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (y) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than, in each case, to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC, any provision of the Bankruptcy Code or otherwise), (B) any Grantor’s directors and officers liability insurance policies, or (C) any application for registration of a trademark filed with the United States Patent and Trademark Office on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is filed, at which time such trademark shall automatically become part of the Collateral and subject to the security interest pledged.
(b) Notwithstanding anything Subject to the contrary in this Agreement or any other Senior Secured Note DocumentSubordination, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each each Grantor hereby irrevocably authorizes the Collateral Agent Notemachine at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent Notemachine promptly upon written request. The Collateral Agent agrees.
(c) After the termination of the Securities Purchase Agreement and Subordination, upon request by the Borrower shall deliver to deliver any Collateral consisting of Pledged Securities to Notemachine, together with stock powers executed in blank, and at such Collateral shall be held by Notemachine until the Borrower’s expense, full payment of all amounts due to promptly furnish copies Lender under the Settlement Agreement or the termination or expiration of such filings to the Borrowerthis Agreement.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party Notemachine to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the due and punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) and performance of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Debtor hereby pledges and assigns to the Secured Party, and hereby grants to the Collateral Agent, its successors Secured Party a first priority lien upon and permitted assigns, for the ratable benefit of the Secured Parties, a continuing first priority security interest in in, all rightrights, title or and interest in or of such Debtor in, to any and under all personal property and fixtures of the following assets and properties in each case such Debtor, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Debtor and wherever located and whether now existing or in which hereafter arising or created (all such Grantor now has or at any time in property and assets are herein collectively called the future may acquire any right"Collateral"), title or interest including, without limitation, the following:
(but a) all Receivables of such Debtor;
(b) all Inventory of such Debtor;
(c) all Equipment of such Debtor, including, without limitation, all Vehicles of such Debtor (excluding any Excluded CollateralEquipment subject to purchase money liens if the terms of the Indebtedness secured by such liens expressly prohibit such Debtor from granting any lien thereon or security interest therein and any Equipment subject to a capital lease which expressly prohibits such Debtor from granting any lien thereon or security interest therein);
(d) all Contracts and Contract Rights of such Debtor (excluding any Contract that expressly prohibits such Debtor from granting any lien thereon or security interest therein);
(e) all Instruments and Chattel Paper of such Debtor;
(f) all General Intangibles of such Debtor, collectivelyincluding, the “Collateral”):without limitation, all Intellectual Property of such Debtor;
(g) all Leases of such Debtor;
(h) all Fixtures of such Debtor;
(i) all Accountscomputers;
(iij) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining (including, without limitation, computer programs, tapes and related electronic data processing software) relating to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities AccountsDebtor's Receivables, including all cashInventory, marketable securitiesEquipment, securities entitlementsContracts, financial assets Intellectual Property and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorassets; and
(xixk) to the extent not otherwise included, all Proceeds, all accessions to cash and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits non-cash Proceeds and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations, including the Obligations (other than contingent obligations)under the Guaranty, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all EquipmentDocuments;
(vi) all General IntangiblesEquipment;
(vii) all GoodsFixtures;
(viii) all Instruments, including General Intangibles and all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Goods;
(x) all Instruments;
(xi) all Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting ObligationsLetters of Credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorMoney; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in (and the term “Collateral” shall not include) any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Excluded Assets.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assetsassets of the Debtor, whether now owned or hereafter acquired” of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained .
(d) The Collateral Agent is authorized to file with the USPTO or the USCO (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in this Agreement shall be construed to make United States Intellectual Property granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantor as debtors and the Collateral Agent as secured party.
(e) Notwithstanding anything to the contrary in the Loan Documents, none of the Grantors shall be required (i) to enter into any deposit account control agreement or securities account control agreement with respect to any other Secured Party liable as a member deposit account or securities account, (ii) to take any action in any non-U.S. jurisdiction or required by the Laws of any limited liability company non-U.S. jurisdiction to create any security interest in any assets located or as a partner titled outside of the U.S. or to perfect or make enforceable any security interests in any assets located outside of the U.S. (it being understood that nothing herein shall require security agreements or pledge agreements governed by the laws of any partnership, neither the Collateral Agent nor non-U.S. jurisdiction) any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any assets located outside of the duties, obligations United States or liabilities of a member of any limited liability company or as a partner (iii) to perfect in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner assets subject to a certificate of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Persontitle statute.
Appears in 1 contract
Sources: Security Agreement (Global Cash Access Holdings, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInstruments;
(x) all Investment Intellectual Property;
(xi) all Intellectual PropertyInventory;
(xii) all Investment Property other than the Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xiv) all minerals, oil, gas and As-Extracted Collateral;
(xv) all Supporting Obligations;books and records pertaining to the Article 9 Collateral; and
(xvi) all cash substitutions, replacements, accessions, products and cash equivalents;
proceeds (xviiincluding insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in any Credit Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) and the other provisions of the Credit Documents with respect to Collateral need not be satisfied with respect to (a) motor vehicles or other assets subject to certificates of title and commercial tort claims, (b) any assets over which the granting of security interests in such assets would be prohibited by an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof and was not created or made binding on the assets in contemplation or in connection with the acquisition of such assets (except in the case of assets owned on the Acquisition Date or acquired after the Acquisition Date with Indebtedness of the type permitted pursuant to Section 6.03(b)(iv) of the Term Loan Agreement and any equivalent provision in the Indenture), applicable law or regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, other Senior Secured Note Documentthan proceeds thereof, the Equity Interests and other securities assignment of any direct which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests security interests would require obtaining the consent of any governmental authority or would result in materially adverse tax consequences as reasonably determined by the Borrower in writing delivered to the Collateral Agent, (c) those assets with respect to which, in the reasonable judgment of the Applicable Agent and the Borrower, evidenced in writing delivered to the Agent, the costs or other securities consequences of obtaining or perfecting such a security interest are excessive in view of the benefits to be obtained by the Secured Parties therefrom, (d) any Letter of Credit Rights (other than to the extent a Lien thereon can secure the Senior Secured Notes and/or the guarantees be perfected by filing a customary financing statement), (e) any Excluded Securities, (f) any Pledgor’s right, title or interest in respect thereof without Rule 3-10 any license, contract or Rule 3-16 of Regulation S-X under the Securities Act (agreement to which such Pledgor is a party or any other lawof its right, rule title or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due interest thereunder to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent, that such a grant would violate the terms of applicable law or of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such license, contract or agreement to which such Pledgor is a party (other than to the extent necessary that any such term would be rendered ineffective pursuant to not Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or regulation (including Title 11 of the United States Code) or principles of equity); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (g) any equipment or other asset owned by any Pledgor that is subject to a purchase money lien or a Capitalized Lease Obligation, in each case, as permitted under the Term Loan Agreement and the Indenture and not prohibited by any other Credit Document, if the contract or other agreement in which such requirementLien is granted (or the documentation providing for such Capitalized Lease Obligation) prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted by under Term Loan Agreement and the Indenture and not prohibited by any other Credit Document, (h) any foreign collateral or credit support with respect to such foreign collateral (other than any such Equity Interests assets pledged pursuant to the Pledge Agreement), (i) any real property (owned or leased) or oil and gas properties (owned or leased) other securitiesthan the Mortgaged Properties, and (j) any asset at any time that is not then subject to a Lien securing First-Priority Lien Obligations at such time (the foregoing clauses (a) through (j), the “Excluded Note CollateralAssets”). In such eventWith respect to the Collateral, no control agreements or control arrangements will be required with respect to any Deposit Accounts, Securities Accounts, Commodity Contracts or any other asset, the Security Documents may be amended perfection of a security interest in which specifically requires a control arrangement or modified, without control agreement (other than the consent delivery of Pledged Securities to the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Applicable Agent to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted required by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirementArticle II). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of the date of this Agreement, include the Intellectual Property to the extent necessary to permit perfection of Agent’s security interest in the Rights to Payment.
3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary (other than an Eligible Foreign Subsidiary) which shares entitle the holder thereof to vote for directors or any other matter, (b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Intellectual Property except to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees described in respect thereof without Rule 3-10 Section 3.1 above, (c) nonassignable licenses or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adoptedcontracts, which would require) by their terms require the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part consent of the Collateral securing the Note Obligations in favor of the Note Secured Parties licensor thereof or another party (but only to the extent necessary to not be such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 of the UCC), and (d) any leasehold real property interest, license, lease or other contract or agreement or any property subject to such requirement) (any such Equity Interests a purchase money security interest or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, similar arrangement to the extent necessary to release the first-priority that a grant of a security interests in the shares interest therein would violate or invalidate such lease, license, contract or agreement or purchase money arrangement or create a right of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations termination in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties party thereto (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventprohibition on transfer or grant of a security interest is enforceable under applicable law, the Security Documents may be amended or modifiedincluding, without the consent limitation, Sections 9406, 9407 and 9408 of the Note TrusteeUCC), the Collateral Agent, (e) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, property to the extent necessary that, and for as long as, such grant of a security interest is prohibited by any applicable law, rule or regulation; provided that the foregoing exclusion in this clause (e) shall in no way be construed (i) to apply to the extent that any described prohibition is unenforceable under Section 9406, 9407 or 9408 of the UCC or other applicable law or (ii) to apply to the extent that any consent or waiver has been obtained, or is hereafter obtained, that would permit the Agent’s security interest or Lien notwithstanding the prohibition on the grant of a security interest in such property (f) Excluded Accounts, (g) motor vehicles or other assets in which a security interest may be perfected only though compliance with a certificate of title statute, (h) any property subject to the Liens under the Security Documents such additional Equity Interests Sanofi Agreement as disclosed on Schedule 3.2 hereto, and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerCash securing reimbursement obligations permitted under this Agreement.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Loan and Security Agreement (X4 Pharmaceuticals, Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge pledges and grant assigns, to the Collateral Agent, acting as agent for the Secured Parties, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementin such capacity, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, acting as agent for the Secured Parties, its successors and permitted assignsassigns in such capacity, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel PaperCommercial Tort Claims identified on Schedule V (as such Schedule may be supplemented from time to time in accordance with the terms hereof);
(iv) all DocumentsChattel Paper;
(v) all Documents;
(vi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ixx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xixii) all Intellectual Property;
(xiixiii) all Pledged Collateral;
(xiiixiv) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing. Notwithstanding the foregoing, the Security Interest shall not extend to, and the “Collateral” (and any component definition thereof) shall not include, any Excluded Property. Further, no Grantor shall be required to take any action with respect to the grant or perfection of any Security Interest in contravention of Section 5.09 of the Credit Agreement.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any the organizational identification number issued to such Grantor if required for the filing of financing statements in any relevant jurisdiction and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Borrower. Without limiting the foregoing, each Grantor hereby ratifies any financing statement filed prior to the date hereof in connection with the Existing Collateral Agreement, and acknowledges, confirms and agrees that any financing statements covering all or any part of the Collateral previously filed in favor of the Collateral Agent under the Existing Collateral Agreement are and shall continue to be in full force and effect with respect to the Collateral under this Agreement.
(dc) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
(e) Notwithstanding anything to the contrary herein, no action shall be required to create or perfect a security interest in the Collateral to the extent such creation or perfection would require (i) any filing other than a filing in the United States of America, any state thereof and the District of Columbia, (ii) other actions under the laws of any jurisdiction other than the United States of America, any state thereof and the District of Columbia or (iii) that any control agreements be obtained in respect thereof.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Energizer Holdings, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Canadian Obligations, including the Canadian Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all present and after acquired personal property of such Grantor, which includes, without limitation, all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “PPSA Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Propertybooks and records pertaining to the PPSA Collateral;
(xii) all Pledged CollateralFixtures;
(xiii) all Records and all books and records pertaining to the CollateralLetter-of-Credit Rights;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;Intellectual Property; and,
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Assets and the term “PPSA Collateral” shall not include any Excluded Assets.
(b) The Security Interest with respect to Trademarks constitutes a security interest in, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute a charge, hypothecation and pledge of, such PPSA Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part favour of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with Parties, but does not constitute an assignment or mortgage of such PPSA Collateral to the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, Collateral Agent or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsParty.
(c) Each Grantor agrees that, in the event any Grantor, pursuant to any Pari Cash Flow Debt Document (as defined in the ABL Intercreditor Agreement), takes any action to grant or perfect a Lien in favor of any Pari Cash Flow Debt Agent (as defined in the ABL Intercreditor Agreement) in any assets, such Grantor shall also take such action to grant or perfect a Lien (subject to the ABL Intercreditor Agreement) in favor of the Collateral Agent to secure the Canadian Obligations without request of the Collateral Agent, including with respect to any property and real property in which any Pari Cash Flow Debt Agent directs a Grantor to grant or perfect a Lien or take such other action under any Pari Cash Flow Debt Document.
(d) Subject to Section 3.01(0, each Grantor hereby irrevocably authorizes the Collateral Agent for the benefit of the Secured Parties at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) or financing change statements with respect to the PPSA Collateral or any part thereof and amendments thereto that (i) indicate the PPSA Collateral as “all assets” or “all present and after acquired personal property” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by the PPSA, Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement, financing change statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the PPSA Collateral.
(f) The Collateral Agent is authorized to file with the USPTO, the USCO or CIPO (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Intellectual Property of each Grantor in which a security interest has been granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantor as debtors and the Collateral Agent as secured party. Nothing contained in this Agreement No Grantor shall be construed required to make complete any filings or other action with respect to the perfection of the Security Interests created hereby in any Intellectual Property subsisting in any jurisdiction outside of the United States or Canada.
(g) Notwithstanding anything to the contrary in the Loan Documents, none of the Grantors shall be required, nor is the Collateral Agent authorized, (i) to perfect the Security Interests granted by this Security Agreement (including Security Interests in Investment Property and Fixtures) by any means other than by (A) filings pursuant to the UCC in the office of the secretary of state (or similar central filing office) of the relevant State(s), and filings in the applicable real estate records with respect to any fixtures relating to Mortgaged Properties, (B) filings in United States government offices with respect to Intellectual Property of the Grantors as expressly required elsewhere herein, (C) filings pursuant to the PPSA in the registry of the relevant provinces(s), and filings in the applicable real estate records with respect to any fixtures relating to Mortgaged Properties, (D) filings in CIPO with respect to Intellectual Property of the Grantors as expressly required elsewhere herein, (E) delivery to the Collateral Agent or any other Secured Party liable the Controlling Cash Flow Debt Agent, as a member applicable, to be held in its possession of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged all Collateral consisting of a limited liability company interest Instruments and certificated Pledged Equity as expressly required elsewhere herein or a partnership interest pursuant hereto(F) other methods expressly provided herein, this Agreement shall not be construed as creating a partnership (ii) to enter into any deposit account control agreement, securities account control agreement or joint venture among the Collateral Agent, any other Secured Partycontrol agreement with respect to any deposit account, any Grantor and/or securities account or any other PersonCollateral that requires perfection by “control,” other than as required by Section 6.18 of the Credit Agreement or Section 3.03(h) hereof and other than with respect to uncertificated securities to the extent provided in Section 2.04, (iii) to take any action (other than the actions listed in clauses (iXA) through (E) above) with respect to any assets located outside of the United States or Canada, (iv) to perfect in any assets subject to a certificate of title statute or (v) to deliver any Equity Interests except as expressly provided in Section 2.01 or Section 2.04.
Appears in 1 contract
Security Interest. (a) As security for the payment or performanceperformance by the Guarantor of all the terms, as covenants and agreements on the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) part of the Loan Obligations (Guarantor to be performed under this Guarantee and any other than contingent obligations)Note Document, each Grantor including all Guaranteed Obligations, the Guarantor hereby confirms the pledge and grant grants to the Collateral Agent, Agent for its successors benefit and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan other Secured Parties, a continuing security interest in, all of the Guarantor’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising (collectively, the “Guarantor Collateral”): (i) all electronic scooter vehicles, (ii) all other personal and fixture property or assets of the Guarantor of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as security defined in the UCC), and (iii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. The Collateral Agent (for the benefit of the Secured Parties) shall have, with respect to all the Guarantor Collateral, and in addition to all the other rights and remedies available to the Collateral Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Guarantor hereby authorizes the Collateral Agent (at the direction of the Required Purchasers) to file financing statements describing the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Guarantee. Notwithstanding the foregoing, the Guarantor Collateral shall not include, and no lien shall attach to, and no representation, warranty, or covenant contained herein or in any other Note Document shall apply to, the Guarantor’s deposit account maintained with Silicon Valley Bank with account number ending in x3275.
(b) The Guarantor authorizes the Collateral Agent (at the direction of the Required Purchasers) to perfect the Collateral Agent’s security interest in the Guarantor Collateral by filing or authorizing the filing of, at the expense of the Guarantor, UCC-1 financing statements (including fixture filings) naming the Collateral Agent as secured party and describing the Guarantor Collateral in a manner that the Required Purchasrs reasonably determine is necessary or advisable to perfect the security interest granted hereunder.
(c) At any time or from time to time upon the request of the Collateral Agent (at the direction of the Required Purchasers), the Guarantor will, at its expense, promptly execute, acknowledge, and deliver such further documents and do such other acts and things as the Required Purchasers reasonably determine is necessary or advisable to perfect the security interest granted hereunder.
(d) Upon the Obligations becoming immediately due and payable, the Collateral Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Guarantee and the other Note Documents, all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Guarantor Collateral shall be applied pursuant to the Intercreditor Agreement.
(e) Upon payment or performance, as the case may be, conversion in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent inchoate indemnity obligations), each Grantor hereby pledges the Guarantor Collateral shall be automatically released from the lien created hereby, and grants this Guarantee and all obligations (other than those expressly stated to survive such termination) of the Guarantor shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Guarantor Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related shall revert to the purchase Guarantor Upon any sale or import other transfer of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records Guarantor Collateral in a transaction permitted under and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Note Purchase Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or upon the effectiveness of any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part written consent of the Collateral securing Agent to the Note Obligations in favor release of the Note Secured Parties (but only to the extent necessary to not be subject to Liens granted hereby on any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note TrusteeGuarantor Collateral, the Collateral Agent’s Lien on such Guarantor Collateral shall be automatically released, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, and all rights therein shall revert to the extent necessary to subject to Guarantor. Promptly following written request therefor by the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information Guarantor delivered to the Collateral Agent promptly upon written request. The Collateral Agent agreesfollowing any such termination or release, upon request by the Borrower and at the Borrower’s expenseexpense of the Guarantor, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with shall execute and deliver to, and authorize the United States Patent filing by, the Guarantor all financing statement amendments or termination statements and Trademark Office or United States Copyright Office (or any successor office) such other documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing Guarantor shall reasonably request to evidence such termination or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors release and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to shall promptly furnish copies of such filings deliver to the BorrowerGuarantor all applicable Guarantor Collateral in its possession.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Guarantee (Bird Global, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of its Obligations and the Loan Obligations (other than contingent obligations)of each Covered BSC Entity, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, JPM and its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, (on its own behalf and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwiseagent on behalf of each other JPM Party) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title and interest in, to or interest in or to under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts, now or hereafter existing, and all balances in any such Deposit Accounts;
(iv) any claim of any kind or nature of any Pledgor against any JPM Party; (v) all Documents;
; (vvi) all Equipment;
(vivii) all General Intangibles;
(vii) all Goods, including rights in respect of Financial Contracts, Lease Rights, personal property leases and other contractual entitlements;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property and, to the extent not otherwise constituting Investment Property, all Equity Interests, Pledged Debt Obligations, securities (whether certificated or uncertificated), security entitlements, securities accounts (and the contents thereof), commodity contracts and commodity accounts, money, certificates of deposit, commercial paper, instruments, financial assets, credits, claims, demands and precious metals (to the extent applicable, as the foregoing terms are used and defined in the New York UCC), in each case whether held by or through any JPM Party, The Depository Trust Company, any other securities intermediary, the Fed, any other Federal Reserve Bank or otherwise and in each case including any certificates or other documents evidencing the same and, subject to Article III, all rights and privileges of such Pledgor with respect to the same;
(xi) all Letter of Credit Rights; (xii) all Commercial Tort Claims; (xiii) all Intellectual Property;
(xiixiv) all Pledged Collateralother personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xiiixv) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsand subject to Article III, all accessions to and substitutions and replacements for proceeds, products, accessions, substitutions, supporting obligations and products of any and all of the foregoing (including interest, dividends, cash, instruments and all offspringsother property from time to time received, rents profits and products receivable or otherwise distributed in respect of, in exchange for or upon the conversion of any of the foregoing foregoing) or of any other property of the Pledgors and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) , including all shares, securities, moneys or property representing a dividend on any of the foregoing, or representing a distribution or return of capital upon or in respect of any of the foregoing or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders or otherwise in respect thereof. Notwithstanding the foregoing or anything to the contrary in this Agreement,
(A) to the extent that the creation of the Security Interest on any specified portion of the Collateral (the “Restricted Collateral”) to secure any specified portion of the Obligations (the “Restricted Obligations”) would give rise to (x) an obligation or obligations under any contracts, agreements or instruments binding on any Pledgor or its property to provide an equal and ratable (or other) lien on the Restricted Collateral to secure liabilities of any Pledgor or Pledgors in an aggregate amount that is material to BSC and its Affiliates taken as a whole or (y) a default, event of default or similar condition however denominated that (with or without the lapse of time, the giving of notice or both) would permit (1) the holder of any indebtedness (or commitment to provide indebtedness) for borrowed money in an amount material to the applicable Pledgor to accelerate the maturity (or terminate the commitment to provide) thereof, or (2) the holder of any indebtedness for borrowed money to accelerate the maturity thereof if the effect of such acceleration would, in turn, be to permit the holder of any other indebtedness or counterparty(ies) to any Financial Contract(s) in an aggregate amount material to any of BSC or its Subsidiaries party to any affected Financial Contract to accelerate or terminate such indebtedness or Financial Contract(s), then, in any such case under (x) or (y), the Security Interest with respect to such Restricted Collateral shall not secure such Restricted Obligations to such extent (and shall secure such Restricted Obligations upon the removal or termination of the applicable agreement or condition under (x) or (y)). Without limitation of the generality of the foregoing, (aa) the Security Interest on any shares of Voting Stock of any Restricted Subsidiary (as such terms are defined, respectively, in the Indenture and the Note Issuance Agreement) shall not secure Obligations consisting of indebtedness for borrowed money until indebtedness outstanding under the Indenture and Note Issuance Agreement shall be repaid or defeased in full, and (bb) the Security Interest shall not extend to Equity Interests if a lien thereon would violate Ownership Limitations for so long as the applicable agreement is in effect; and
(B) subject to the provisos of this paragraph, this Agreement shall not constitute a grant of a security interest in:
(i) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose;
(ii) any property of any kind or nature the granting of a security interest in which would constitute a breach of any law, rule or regulation of any Governmental Authority (including Equity Interests in Regulated Entities to the extent a pledge of such Equity Interests is so restricted);
(iii) any Deposit Account, Investment Property or other asset or property constituting (x) a segregated account maintained pursuant to Section 4d of the Commodity Exchange Act and Regulation 1.20 thereunder, (y) an account maintained by the Pledgor pursuant to Rule 15c3-3 under the Securities Exchange Act of 1934 (the “Exchange Act”) as a “Special Reserve Account for the Exclusive Benefit of Customers” and (z) any account in which JPM has waived, or in the future shall waive, in writing its lien in accordance with the foregoing acts and regulations or otherwise in respect of customer securities of any of the Covered BSC Entities,
(iv) any Financial Contract, assets securing the obligations under a Financial Contract, or right therein to the extent that the pledge thereof would violate or otherwise give rise to an event of default under the applicable Financial Contract entitling the counterparty to the applicable Pledgor to terminate or close out (other than to the extent that any such right would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other Senior Secured Note Documentapplicable law (including, without limitation, Title 11 of the United States Code) or principles of equity) such Financial Contract on account of the existence (without enforcement) of the Security Interest;
(v) any Pledgor’s right, title or interest in any license, contract or agreement other than a Financial Contract to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, (i) result in a breach of the terms of, or constitute a default under, such license, contract or agreement that, in either case, would give rise to a loss or liability that would entirely offset the value of such license, contract or agreement, or (ii) result in the abandonment, invalidation or unenforceability of, such license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity); provided, that immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect;
(vi) any Equity Interests and Interest or other securities interest in ▇▇▇▇▇▇▇/Madison Avenue LLC or its manager, ▇▇▇▇▇▇▇/Madison Avenue Inc., or any asset of any direct type or indirect subsidiary nature of Holdings that are owned by ▇▇▇▇▇▇▇/Madison Avenue LLC or ▇▇▇▇▇▇▇/Madison Avenue Inc.;
(vii) any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Lease Right to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X grant is not permitted under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement relevant Lease and this Agreement. In violates or causes a default thereunder, in either case that would entirely offset the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements value of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties Lease Right;
(but only viii) any asset that constitutes Margin Stock to the extent necessary to not be subject to any such financial statement requirement). In such event, that the granting of the Security Documents may Interest therein would violate or be amended or modifiedinconsistent with the provisions of Regulations T, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, U and X;
(ix) to the extent necessary to applicable law requires that a Subsidiary of any Pledgor issue directors’ qualifying shares, such shares or nominee or other similar shares; or
(x) any asset set forth on Schedule 7.19; provided, that any such asset shall immediately, without further act or deed, become subject to the Liens under Security Interest upon termination or lapse of the agreement or condition set forth above with respect to such asset; and provided, further that JPM shall in any event, except to the extent that the granting thereof would independently violate any of (i) through (vii) above, have and retain a lien in the proceeds of any such asset. With respect to any asset excluded from the Security Documents Interest pursuant to subsections (i) – (x) above, any lien purported to be granted hereunder in any such additional Equity Interests asset shall immediately and other securitiesautomatically, with no further act or deed become null and void ab initio. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent JPM at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as JPM may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent JPM promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent JPM is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any Grantorsuch Pledgor, and naming any Grantor such Pledgor or the Grantors Pledgors as debtors and the Collateral Agent JPM as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (J P Morgan Chase & Co)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of the date of this Agreement, include the Intellectual Property to the extent necessary to permit perfection of Agent’s security interest in the Rights to Payment.
3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (ba) Notwithstanding anything any property, right or asset held by Borrower to the contrary extent that a grant of a security interest therein is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, right or asset, except (A) to the extent that the terms in such contract, license, instrument or other document providing for such prohibition, breach, default or termination, or requiring such consent are not permitted under this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only (B) to the extent that such Equity Interests and Requirement of Law or the term in such contract, license, agreement, instrument or other securities can secure document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9406, 9407, 9408 or 9409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act UCC (or any other law, rule successor provision or regulationprovisions) requiring separate financial statements of such subsidiary to be filed with the SEC (any relevant jurisdiction or any other governmental agencyapplicable law (including the Bankruptcy Code of the United States). In the event ; provided, however, that Rule 3-10 such security interest shall attach immediately at such time as such Requirement of Law is not effective or Rule 3-16 of Regulation S-X under the Securities Act requires applicable, or such prohibition, breach, default or termination is no longer applicable or is amendedwaived, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due and to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent severable, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not attach US-DOCS\132047445.10 immediately to be part any portion of the Collateral securing the Note Obligations that does not result in favor of the Note Secured Parties such consequences, (but only to the extent necessary to not be subject to such requirementb) (any such Equity Interests or other securitiesExcluded Accounts, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at assets of any time non-wholly owned Subsidiaries pursuant to customary restrictions and from time conditions contained in agreements governing joint ventures or strategic alliances in the ordinary course of business, provided that Borrower has exercised its good faith best efforts to time not agree to file such contractual limitations, (d) interests in any relevant jurisdiction any financing statements joint ventures that constitute Permitted Investments pursuant to customary restrictions and conditions contained in agreements governing such joint ventures in the ordinary course of business, provided that Borrower has exercised its good faith best efforts to not agree to such contractual limitations, or (including fixture filingse) with respect to shares or stock in Excluded Subsidiaries, more than 65% to the Collateral or any part thereof and amendments thereto extent that (i) indicate the Collateral as “all assets” pledge of more than 65% of such Grantor shares or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing stock of any financing statement or amendment, including (x) whether such Grantor is Excluded Subsidiary would result in an organization, the type of organization and any organizational identification number issued adverse tax consequence to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent 3.3 [Reserved].
3.4 If this Agreement is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfectingterminated, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and Agent’s Lien in the Collateral Agent as secured partyshall continue until the Secured Obligations (other than inchoate indemnity obligations) are repaid in full in cash. The Collateral Agent agrees, upon request by Upon payment in full in cash of the Borrower Secured Obligations (other than inchoate indemnity obligations) and at such time as the Lenders’ obligation to make credit extensions has terminated, Agent shall, at the sole cost and expense of Borrower’s expense, release its Liens in the Collateral and all rights therein shall revert to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) Notwithstanding anything ; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the contrary in this Agreement sale, licensing or disposition of all or any other Senior Secured Note Documentpart, or rights in, the Equity Interests Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and other securities effective as of any direct or indirect subsidiary the date of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for this Agreement, include the benefit of Senior Secured Note Holders only Intellectual Property to the extent that such Equity Interests and other securities can secure necessary to permit perfection of Agent’s security interest in the Senior Secured Notes and/or Rights to Payment.
3.2 Notwithstanding the guarantees broad grant of the security interest set forth in respect thereof without Rule 3-10 Section 3.1, above, the Collateral shall not include nonassignable licenses or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adoptedcontracts, which would require) by their terms require the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part consent of the Collateral securing the Note Obligations in favor of the Note Secured Parties licensor thereof or another party (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesprohibition on transfer is enforceable under applicable law, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modifiedincluding, without the consent limitation, Sections 9406, 9407 and 9408 of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests UCC).
3.3 Upon satisfaction in the shares of Equity Interests and other securities that are so deemed to no longer constitute part full in cash of the Collateral securing the Note Secured Obligations in favor of the Note Secured Parties. For the avoidance of doubt(other than inchoate indemnity obligations) and at such time as Lenders’ obligation to make Advances has terminated, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agreesshall, upon the written request by the Borrower and at the sole cost and expense of Borrower’s expense, release its liens in the Collateral and all rights therein shall revert to promptly furnish copies Borrower. At the reasonable request of the Borrower following any such filings termination, Agent will deliver to the Borrower.
(d) The Borrower any Collateral held by Agent is further authorized under this Agreement, and execute and deliver to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) Borrower such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon Borrower will reasonably request by the Borrower and at the Borrower’s expense, to promptly furnish copies of evidence such filings to the Borrowertermination.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Loan and Security Agreement (Applied Genetic Technologies Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(x) all Goods and Fixtures;
(xi) all Money, cash, cash equivalents and Deposit Accounts;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule II from time to time, as such Schedule may be supplemented from time to time pursuant to Section 3.02;
(xiv) each Collection Deposit Account, Collection Lockbox and Concentration Deposit Account, and all letters of credit under which such Grantor is the beneficiary cash, Money, Securities and Letter of Credit Rightsother investments deposited therein;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalentsSecurity Entitlements in any or all of the foregoing;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and (including proceeds of all offsprings, rents profits and products of any of the foregoing insurance policies) and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything herein to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligationscontrary, to the extent necessary to release and for so long as any asset is Excluded Property, the first-priority security interests in Security Interest granted under this Section 3.01 shall not attach to, and Article 9 Collateral shall not include, such asset; provided, however, that the shares of Equity Interests Security Interest shall immediately attach to, and other securities that are so deemed to no longer constitute part of the Article 9 Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtshall immediately include, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit asset (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permitportion thereof) upon such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC asset (or any other governmental agencysuch portion) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed ceasing to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Property.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) for the benefit of the Secured Parties at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, (or its designee) to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrowerdate hereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, security interest granted pursuant to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)of the Credit Parties, each Grantor Credit Party hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, (wherever located, and ) now owned or at any time hereafter acquired by such Grantor Credit Party or in which such Grantor Credit Party now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesGoods;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, Instruments (including all the Pledged Debt Securities);
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment PropertyProperty (including the Pledged Equity Interests);
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xii) all Intellectual Property;
(xiii) all Commercial Tort Claims, including, without limitation, those described on Schedule IV hereto;
(1) Securities Accounts, (2) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all cash held in any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xv) all Supporting Obligations;books and Records pertaining to the Article 9 Collateral; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any motor vehicle, aircraft, airframe, rolling stock and other assets subject to a certificate of title or ownership, whether now owned or hereafter acquired, (b) any Excluded Equity Interests, (c) any Letter of Credit Rights relating to any letter of credit with a face amount not in excess of $5,000,000, except to the extent constituting a support obligation for other Collateral as to which perfection of a security interest therein can be perfected by the filing of any financing statement under the Uniform Commercial Code (or similar filing in any applicable jurisdiction), and to the extent the applicable Credit Party is not required by applicable law to apply the proceeds of a drawing of such letter of credit for a specified purpose, (d) any Credit Party’s right, title or interest in any lease, license or agreement or any other Senior Secured Note Documentproperty subject to a purchase money security interest, Financing Lease Obligation or similar arrangements to which such Credit Party is a party or any of its right, title or interest thereunder, the Equity Interests property subject thereto, any insurance in respect thereof, any management or operating agreement with respect thereto and other securities deposits made in respect thereof and all rights, title or interest in relation to any of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only foregoing, in each case, to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X a grant would, under the Securities Act (or any other law, rule or regulation) requiring separate financial statements terms of such subsidiary to be filed with lease, license or agreement, purchase money, financing lease or similar arrangement result in a breach of the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationterms of, or any other lawconstitute a default under, rule or regulation is adoptedresult in the abandonment, which would require) the filing with the SEC (invalidation or any other governmental agency) unenforceability of separate financial statements or create a right of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations termination in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without require the consent of any other party (in each case, other than a Credit Party) to, such lease, license or agreement, (e) (i) all owned real property interests with a fair market value (as reasonably determined by the Note TrusteeIssuer in good faith) equal to or less than $7,500,000; and (ii) all leasehold interests (it is understood that there shall be no requirement to obtain landlord waivers, estoppels or collateral access agreements or acknowledgements, bailee waivers and similar letters), (f)(i) payroll, healthcare and other employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) escrow, defeasance, discharge and redemption accounts, (iv) fiduciary or other trust accounts, and, in the case of clauses (i) through (iv), the Collateral Agentfunds or other property held in or maintained in such account, any Senior Secured Note Holder (v) zero-balance accounts, (vi) accounts in jurisdictions other than in the jurisdiction of organization of the applicable granting Credit Party, the United States or any holder state thereof, and (vii) accounts other than those described in the preceding clauses with respect to which the average daily balance of Other Pari Passu Lien Obligationsthe funds maintained on deposit therein does not exceed $1,000,000 in the aggregate (such accounts in this clause (f) being the “Excluded Accounts”) (g) any Commercial Tort Claim with an expected value not in excess of $1,000,000, as determined in good faith by the Issuer, (h) the Issuer’s or its subsidiaries’ rights in relation to aircraft and airframes, including rights under any lease, sublease, charter, management, operating, crew, service, repair, maintenance, storage or other agreement relating to the aircraft, rights in the aircraft and any parts, accessions and accessories thereto, rights under insurance policies and security deposits and rights in income derived from and proceeds of any of the foregoing, in the ordinary course, (i) assets if the granting of a security interest therein would result in material adverse tax consequences to any Credit Party as reasonably determined by the Issuer, (j) those assets as to which the Collateral Agent and the Issuer reasonably determine in good faith that any of the cost, burden or consequences (including adverse tax consequences) of obtaining or perfecting such a security interest in such assets is excessive in relation to the practical benefit to the Secured Parties of the security to be afforded thereby, (k) foreign intellectual property, (l) any United States “intent to use” trademark application or intent-to-use service m▇▇▇ application filed pursuant to Section 1(b) of the L▇▇▇▇▇ Act, to the extent necessary and during the period that the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the cancellation of the applicable Credit Party’s right, title or interest therein or any trademark or service m▇▇▇ registration that issues as a result of such application under applicable federal law (including prior to release the firstfiling and acceptance of a “Statement of Use” or “Amendment to Allege Use” with respect thereto), after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral, (m) intellectual property specifically requiring a filing in a jurisdiction outside of the United States, (n) any assets (including interests in partnerships, joint ventures and other non-priority wholly owned entities) in respect of which and to the extent that pledges and security interests are prohibited by law or prohibited by agreements containing anti-assignment clauses not overridden by the New York UCC or other applicable law, (o) any assets and proceeds thereof subject to a Financing Lease Obligation or a purchase money lien permitted by clause 13 of the definition of “Permitted Liens” in the shares Indenture to the extent such a grant would violate or invalidate the documents providing for such Financing Lease Obligation or purchase money lien and (p) prior to the Discharge of Equity Interests ABL Obligations, any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement); provided that clauses (b), (d), (k) or (n) shall not include (x) items to the extent the prohibition or restriction on the assignment or pledge thereof hereunder is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC, any other applicable anti-assignment provisions of the UCC or other applicable law (including without limitation Title 11 of the United States Code) or (y) proceeds from the sale, license, lease or other disposition and receivables of the assets referred to in such clause (including accounts receivable and other securities that are so monies due or to become due under or in connection therewith), the assignment of which is expressly deemed to no longer constitute part effective under Section 9-406, 9-407, 9-408, or 9-409 of the Collateral securing the Note Obligations in favor UCC, any other applicable anti-assignment provisions of the Note Secured Parties. For UCC or other applicable law notwithstanding such prohibition (the avoidance assets described in clauses (a) through (p) above, subject to the foregoing proviso, collectively, the “Excluded Assets”); provided that such exclusions shall not de facto apply to the proceeds of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties property referred to in accordance with the terms foregoing clauses (d), (k) and (n) of the Credit Agreement this Section 3.01 or in clauses (A) to and this Agreement. In the event including (I) of Section 2.01(a); provided, further, that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act no asset shall constitute an “Excluded Asset” if such asset is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities pledged to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Second Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsAgreement.
(cb) Each Grantor Credit Party hereby authorizes irrevocably authorizes, but does not obligate, the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Credit Party is an organization, the type of organization and any organizational identification number issued to such Grantor and Credit Party, (yii) in the case of a financing statement filed as a fixture filingfiling in a Uniform Commercial Code filing office, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the Security Interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, “all assets whether now owned or hereafter acquired”, or words of similar effect. Each Grantor Credit Party agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized authorized, but not obligated, to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting reflecting the Security Interest granted by each GrantorCredit Party in such Credit Party’s Patents, Trademarks and Copyrights, without the signature of any Grantorsuch Credit Party, and naming any Grantor Credit Party or the Grantors Credit Parties as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Credit Party shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerCredit Party constituting Intellectual Property.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Credit Party with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything to the contrary in this Agreement or the Indenture, (i) no perfection steps shall be construed required by any means other than (A) filings pursuant to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to Uniform Commercial Code in the following sentence) shall have any office of the dutiesSecretary of State (or equivalent filing office) of the relevant State(s) of the respective jurisdictions of organization of each Credit Party, obligations or liabilities (B) filings in the United States Patent and Trademark Office and the United States Copyright Office of a member the Intellectual Property Security Agreement, (C) delivery of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement promissory notes and instruments evidencing Indebtedness for borrowed money; provided that such delivery shall not be construed as creating required with respect to (1) promissory notes and instruments evidencing Indebtedness for borrowed money having an aggregate principal amount not in excess of $5,000,000, (2) any promissory notes and instruments evidencing Indebtedness for borrowed money that are promptly deposited into an investment or securities account, (3) checks received in the ordinary course of business and (4) promissory notes and instruments evidencing Indebtedness issued in connection with the extension of trade credit by the grantor of a partnership or joint venture among security interest, (D) delivery of Collateral consisting of certificated Equity Interests included in the Collateral to the Collateral Agent, Term Loan Agent, Term Loan Representative or any Additional Term Agent, as applicable, in accordance with the ABL/Term Loan Intercreditor Agreement and (E) other Secured Party, actions expressly required by this Agreement or the Indenture or as set forth in any Grantor and/or local law security agreement; (ii) no actions shall be required in order to create any security interest in assets located or titled outside of the United States or make enforceable any such security interest; (iii) no security shall be taken or perfected over movable plant and equipment to the extent requiring any labeling or segregation of such plant or equipment; (iv) no security shall be taken or perfected over any stock in trade to the extent this would require any item-specific or periodic listing of stock in trade or any segregation thereof; (v) no Control Agreement shall be required to be executed and delivered; (vi) no notice shall be required to be delivered to Account Debtors or other Personcontractual third parties prior to the occurrence and during the continuance of an Event of Default; and (vii) no action in addition to the filings contemplated under clause (i) above shall be required to perfect the Security Interest in any Commercial Tort Claim or Letter of Credit Right included in the Collateral.
Appears in 1 contract
Sources: Notes Pledge and Security Agreement (Lannett Co Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Each Grantor hereby confirms the pledge pledges and grant grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or and performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded CollateralProperty, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(viiivii) all Instruments, including all Pledged Securities;
(ixviii) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xix) all Investment Property;
(xix) all Intellectual Property;
(xiixi) all Pledged Collateral;
(xiiixii) all Records and all books and records pertaining to the Collateral;
(xivxiii) all letters of credit under which such Grantor is the beneficiary and Letter of Letter-of-Credit Rights;
(xvxiv) all Supporting Obligations;
(xvixv) all cash and cash equivalentsCash Equivalents;
(xviixvi) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xvii) all rights to any price protection payments, rebates, discounts, credits, factory holdbacks, incentive payments and other amounts which at any time are due Grantors from a Floorplan Approved Vendor (as defined in the Revolving Credit Agreement) in connection with Floorplan Financed Inventory (as defined in the Revolving Credit Agreement);
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations[Reserved].
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, with or without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, and neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (ConvergeOne Holdings, Inc.)
Security Interest. (a) As security for To secure the payment or performanceand performance of that certain 90 Day Secured Note dated of even date herewith in the original principal amount of $1,569,001 (the "90 Day Note") in favor of Secured Party and that certain Four Year Secured Note dated of even date herewith in the original principal amount of $1,100,000 (the "Four Year Note") in favor of Secured Party, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) and all of the Loan Obligations (other than contingent obligations)obligations of Debtor, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Debtor grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangibledescribed property (the "Collateral") of Debtor, wherever located, and whether now owned or existing or hereafter acquired, arising, or existing:
(a) all properties, rights, and interests of Debtor which are at any time hereafter acquired by such Grantor in the possession, custody, or control of Debtor or any of its agents, affiliates, or correspondents, for any purpose, including those assets set forth in which such Grantor Exhibit A as attached hereto;
(b) all furniture, fixtures, machinery, equipment and similar goods, together with all attachments, accessions, tools, parts, accessories, supplies, increases and additions thereto and all replacements or substitutions thereof;
(c) all rents, payments, monies, and all other rights arising out of the sale, lease, or other disposition of the Collateral;
(d) all money and other property now has or at any time in the future may acquire possession or under the control of, or in transit to Secured Party;
(e) all proceeds, products, additions to, substitutions and replacements for, and accessions of, any rightand all Collateral described in this Section 2.1; "proceeds" includes, title or interest (but excluding any Excluded Collateralwithout limitation, collectively, the “Collateral”):
(i) all Accounts;
proceeds of any insurance (including any surrender value therefor, any right to return, or unearned premiums), causes and rights of action, remedies, privileges, settlements, judicial and arbitration judgments and awards, indemnities, liens, warranties, or guaranties payable from time to time with respect to or security for any of the Collateral; (ii) all payments (in any form) made or due and payable to Debtor from time to time in connection with any requisition, confiscation, condemnation, seizure, or forfeiture of all or any part of the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
by any governmental authority; (iii) all Chattel Paper;
any equipment provided in substitution for or payment of any Collateral; and (iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory other amounts from time to time paid or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase payable under or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in connection with any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorCollateral; and
(xixf) all books, records and data relating to the extent not otherwise includedCollateral, all Proceedsin any form whatsoever, all accessions to and substitutions and replacements for and products including any form of any and writing, photograph, microfilm, microfiche, or electronic media, together with all of the foregoing Debtor's right, title and interest in and to all offspringscomputer software required to create, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement maintain, process or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (otherwise utilize any such Equity Interests books, records or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsdata.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Secured Obligations (other than contingent obligations)when due, each Grantor Pledgor hereby confirms the pledge collaterally assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles (other than the Pledged Collateral, which is governed by Article III);
(viii) all InstrumentsInstruments (other than the Pledged Collateral, including all Pledged Securitieswhich is governed by Article III);
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(x) all Inventory;
(xi) all Investment Property (other than the Pledged Collateral, which is governed by Article III);
(xii) all Pledged CollateralLetter of Credit Rights;
(xiii) all Records and Commercial Tort Claims reasonably estimated to exceed $15,000,000 individually, as described on Schedule II hereto;
(xiv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, this Agreement shall not constitute a grant of a security interest in (and the Equity Interests Article 9 Collateral shall not include), and the other securities provisions of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute the Loan Documents with respect to Collateral securing Note Obligations for need not be satisfied with respect to, the benefit of Senior Secured Note Holders only to Excluded Securities and the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency)Excluded Property. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amendedaddition, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For for the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit provisions of the Loan Secured Parties in accordance with the terms Section 9.22 of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agencyEquivalent Provision thereof) and 7.24 of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) this Agreement shall apply mutatis mutandis to Other Pari Passu Lien Obligationsall the terms and provisions of this Agreement.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor in such Pledgor’s United States registered or pending Patents, Trademarks and Copyrights, without the signature of any Grantorsuch Pledgor, and naming any Grantor such Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States of America for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights or any other assets.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of such Borrower’s right, title or title, and interest in or in, to any and under all of such Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property), (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of such Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, such Borrower and wherever located, and any of such Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) Notwithstanding anything ; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the contrary in this Agreement sale, licensing or disposition of all or any other Senior Secured Note Documentpart, or rights in, the Equity Interests Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and other securities effective as of any direct or indirect subsidiary the date of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for this Agreement, include the benefit of Senior Secured Note Holders only Intellectual Property to the extent that such Equity Interests and other securities can secure necessary to permit perfection of Agent’s security interest in the Senior Secured Notes and/or Rights to Payment.
3.2 Notwithstanding the guarantees broad grant of the security interest set forth in respect thereof without Rule 3-10 Section 3.1, above, the Collateral shall not include (a) nonassignable licenses or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adoptedcontracts, which would require) by their terms require the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part consent of the Collateral securing the Note Obligations in favor of the Note Secured Parties licensor thereof or another party (but only to the extent necessary such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 of the UCC), (b) any “intent to not be subject use” trademarks at all times prior to such requirement) (any such Equity Interests or other securitiesthe first use thereof, “Excluded Note Collateral”). In such eventwhether by the actual use thereof in commerce, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or United States Copyright Office otherwise, or (c) assets as to which a security interest in such assets is prohibited by applicable law, rule or regulation, provided in the event such prohibition lapses, such assets shall automatically be included in the Collateral.
3.3 The security interest granted in Section 3.1 of this Agreement shall continue until the Secured Obligations (other than contingent indemnification or reimbursement obligations that are not yet due and payable) have been paid in full and Lender has no further commitment or obligation hereunder or under the other Loan Documents to make any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantorfurther Advances, and naming any Grantor or the Grantors as debtors shall thereupon terminate, and the Collateral Agent as secured party. The Collateral Agent agreesLender shall, upon request by the Borrower and at the Borrower’s expense, take all actions reasonably requested by Borrower to promptly furnish copies of evidence such filings to the Borrowertermination.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Loan and Security Agreement (Proteostasis Therapeutics, Inc.)
Security Interest. (a) As security for Except as otherwise expressly provided in the payment or performancelast sentence of this Section 2, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor Debtor hereby confirms the pledge and grant grants to the American Collateral Agent, its successors fo▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ the Lenders and permitted assigns of the Collateral Agents, a continuing security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise"Security Interest") of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or and interest of Debtor in or to any and all of its personal property, including, without limitation, all of the following assets and properties types of personal property, in each case instance wherever located and whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or existing, and in which such Grantor now has or at all Proceeds and products thereof in any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):form.
(i) all Accountsof its Goods (including, without limitation, Inventory, Equipment, Fixtures (whether or not affixed to realty) and all parts, additions, replacements, substitutions and accessions thereto or therefor, in all supporting obligations thereof and in all documents and other records therefor;
(ii) the Cash Collateral Account all of its Accounts, Chattel Paper (as defined in the Revolving whether tangible or electronic), Deposit Accounts, Documents, Instruments (including, without limitation, promissory notes), Investment Property, Letter-of-Credit Agreement) and all Rights, Letters Of Credit, cash, securitiesmoney, Instruments and supporting obligations, other property deposited obligations of any kind owing to Debtor, whether or required to be deposited therein;
(iii) not arising out of or in connection with the sale or lease of goods or the rendering of services, all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsbooks, including all Pledged Securities;
(ix) all Inventory or documents of titleinvoices, customs receipts, insurance certificates, shipping documents and other written materials related records in any form evidencing or relating to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviiiiii) all of its General Intangibles (including, without limitation, payment intangibles and software);
(iv) all of its Intercompany Collateral (as hereinafter defined);
(v) all of its other personal property whatsoever of such Grantordescribed in any schedule from time to time delivered by Debtor to American Collateral Agent; and
(xix) , to the extent not otherwise included, all Proceedspayments under insurance or any indemnity, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person warranty or guaranty with respect to any of the foregoing, in each case as such terms are defined under the UCC. In addition, the Debtor hereby grants a security interest to the American Collateral Agent, for the benefit of the Lenders and the Canadian Collateral Agent and for its benefit as American Collateral Agent, in all of its claims arising out of or relating to any commercial tort claims, including, without limitation, those described on the Schedule hereto or described in any schedule from time to time delivered by Debtor to American Collateral Agent. All of the foregoing property of the Debtor shall be collectively referred to herein as the "Collateral". Notwithstanding the foregoing, the Collateral shall not include any cash or cash equivalents owned by Debtor or any shareholder, partnership, membership or similar ownership interests of Debtor in any Unrestricted Subsidiaries (as defined in the Credit Agreement), rights of Debtor under distribution contracts outside the United States and Canada solely for the benefit of the Unrestricted Subsidiaries and Debtor and any assets of the Unrestricted Subsidiaries.
(b) Notwithstanding anything Debtor hereby assigns to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the American Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with Lenders and the terms of the Credit Agreement Canadian Collateral Agent and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the for its benefit as American Collateral Agent, any Senior Secured Note Holder or any holder and all of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file its security interest in any relevant jurisdiction any financing statements Goods (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectincluding, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall but not subject the Collateral Agent or any other Secured Party limited to, or in any way alter or modifyEquipment, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Fixtures And Inventory);
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInstruments;
(x) all Investment Intellectual Property;
(xi) all Intellectual PropertyInventory;
(xii) all Investment Property other than the Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xiv) all minerals, oil, gas and As-Extracted Collateral;
(xv) all Supporting Obligations;books and records pertaining to the Article 9 Collateral; and
(xvi) all cash substitutions, replacements, accessions, products and cash equivalents;
proceeds (xviiincluding insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in the Credit Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) and the other provisions of the Credit Documents with respect to Collateral need not be satisfied with respect to (a) motor vehicles or other assets subject to certificates of title and commercial tort claims, (b) any assets over which the granting of security interests in such assets would be prohibited by an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof and was not created or made binding on the assets in contemplation or in connection with the acquisition of such assets (except in the case of assets owned on the Closing Date or acquired after the Closing Date with Indebtedness of the type permitted pursuant to Section 10.1(g) of the Credit Agreement), applicable law or regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, other Senior Secured Note Documentthan proceeds thereof, the Equity Interests and other securities assignment of any direct which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests security interests would require obtaining the consent of any governmental authority or would result in materially adverse tax consequences as reasonably determined by the Borrower in writing delivered to the Collateral Agent, (c) those assets with respect to which, in the reasonable judgment of the Agent and the Borrower, evidenced in writing delivered to the Agent, the costs or other securities consequences of obtaining or perfecting such a security interest are excessive in view of the benefits to be obtained by the Secured Parties therefrom, (d) any Letter of Credit Rights (other than to the extent a Lien thereon can secure the Senior Secured Notes and/or the guarantees be perfected by filing a customary financing statement), (e) any Excluded Securities, (f) any Grantor’s right, title or interest in respect thereof without Rule 3-10 any license, contract or Rule 3-16 of Regulation S-X under the Securities Act (agreement to which such Grantor is a party or any other lawof its right, rule title or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due interest thereunder to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent, that such a grant would violate the terms of applicable law or of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such license, contract or agreement to which such Grantor is a party (other than to the extent necessary that any such term would be rendered ineffective pursuant to not Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or regulation (including Title 11 of the United States Code) or principles of equity); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (g) any equipment or other asset owned by any Grantor that is subject to a purchase money lien or a Capitalized Lease Obligation, in each case, as permitted under the Credit Agreement, if the contract or other agreement in which such requirementLien is granted (or the documentation providing for such Capitalized Lease Obligation) prohibits or requires the consent of any person other than the Grantors as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted by the Credit Agreement, (h) any foreign collateral or credit support with respect to such foreign collateral (other than any such Equity Interests assets pledged pursuant to the Pledge Agreement) or (i) any real property (owned or leased) or oil and gas properties (owned or leased) other securitiesthan the Mortgaged Properties (the foregoing clauses (a) through (i), the “Excluded Note CollateralAssets”). In such eventWith respect to the Collateral, no control agreements or control arrangements will be required with respect to any Deposit Accounts, Securities Accounts, Commodity Contracts or any other asset, the Security Documents may be amended perfection of a security interest in which specifically requires a control arrangement or modified, without control agreement (other than the consent delivery of Pledged Securities to the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Agent to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted required by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirementArticle II). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(cb) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Borrower hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all of Borrower’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time existing or hereafter acquired by such Grantor or in which such Grantor now has or at any time arising and wheresoever located, including all accessions thereto and products and proceeds thereof (with respect the Borrower or, together with the Collateral (as defined in the future may acquire any rightPledge Agreement), title or interest (but excluding any Excluded Collateralthe Loan Parties, collectively, as the context requires, the “Collateral”):
(ia) the Underwriting Package, and Servicing Records, together with all Accountsother files, material documents, instruments, certificates, correspondence, appraisals, computer records, computer storage media, accounting records and other books and records relating thereto;
(iib) the Cash Collateral Account all “general intangibles”, “accounts”, “securities accounts” (as defined in Section 8-501(a) of the Revolving Credit AgreementUCC), “deposit accounts”, “investment property”, “instruments” and “chattel paper” (as each such term is defined in the UCC), including without limitation: (1) the Financed Tax Liens, all income thereon and all “securities accounts” to which any or all of the Financed Tax Liens are credited, and (2) the Servicing Rights,
(c) all Income;
(d) the Lockbox Account, Concentration Account, Collection Account, Distribution Account and Interest Reserve Account (collectively, the “Account Collateral”) and all cashmonies from time to time on deposit in each of the foregoing,
(e) the Pledged Equity and all rights, securitiesprivileges, Instruments authority and other property deposited powers to distributions, dividends and redemptions on account of such Pledged Equity, all general intangible and contract rights related thereto and documents and certificates representing or required to be deposited thereinevidencing any Pledged Equity;
(iiif) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters “accounts,” “chattel paper,” “commercial tort claims,” “deposit accounts,” “documents,” “equipment,” “general intangibles,” “goods,” “instruments,” “inventory,” “investment property,” “letter of credit under which such Grantor rights,” and “securities’ accounts” as each of those terms is defined in the beneficiary Uniform Commercial Code and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;Cash Equivalents and all products and proceeds relating to or constituting any or all of the foregoing; and
(xviig) all Deposit Accounts and Securities Accounts“proceeds” as defined in the UCC, including without limitation, all cashreplacements, marketable securitiessubstitutions or distributions on or proceeds, securities entitlementspayments, Income and profits of, and records and files (but excluding any financial assets models or other proprietary information) relating to any and other funds held in or on deposit in all of any of the foregoing;
; provided, however, “Collateral” shall exclude any deposit account other than those expressly identified in clause (xviiid) all other personal property whatsoever of such Grantor; and
(xix) to above, including, without limitation, the extent not otherwise included, all Proceeds, all accessions to Borrower’s Operating Account and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and assets from time to time deposited therein and assets from time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowertime credited thereto.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Loan and Security Agreement (Fortress Credit Realty Income Trust)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor including, without limitation, obligations under the Guaranty, the Borrower hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (collectively, with the Parent Guarantor Security Interest, the “Security Interest”) in, all right, title or interest in or to any and all of the following its assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor the Borrower or in which such Grantor the Borrower now has or at any time in the future may acquire any right, title or interest interest, including, without limitation, the following (but excluding any Excluded collectively, with the Parent Guarantor Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinCommercial Tort Claims;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures, but only to the extent such Fixtures constitute personal property for purposes of the UCC;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related Instruments;
(x) all Intellectual Property Collateral (but excluding any United States intent-to-use trademark application prior to the purchase filing and acceptance of a statement of use or import of any an amendment to allege use in connection therewith to the extent that a valid security interest may not be taken on such an intent-to-use trademark application under applicable Law);
(xi) all Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyLetters of Credit and Letter-of-Credit Rights;
(xiixiv) all Money and all Deposit Accounts (including, without limitation, the Cash Collateral Account);
(xv) all Pledged CollateralEquity and Pledged Debt and all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion thereof;
(xiiixvi) all Records Supporting Obligations;
(xvii) the Purchase Agreement, the Escrow Agreement, the Employment Agreements, the Publicity Rights License Agreement and the other Transaction Documents, and the SPE Borrower License Agreement;
(xviii) all books and records pertaining to the Collateral;
Collateral including but not limited to any computer-readable memory and any computer hardware or software necessary to process such memory (xiv) all letters of credit under which such Grantor is the beneficiary “Books and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorRecords”); and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations As security for the benefit payment or performance, as the case may be, in full of Senior the Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof Obligations, including, without Rule 3-10 or Rule 3-16 of Regulation S-X limitation, obligations under the Securities Act (or any other lawGuaranty, rule or regulation) requiring separate financial statements of such subsidiary Parent Guarantor hereby assigns and pledges to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligationsits successors and assigns, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement Parties, and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC hereby grants to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Parent Guarantor Security Interest”) in, all right, title or interest in or to any Senior Secured Note Holder and all of the following assets and properties now owned or at any holder time hereafter acquired by Parent Guarantor or in which Parent Guarantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Parent Guarantor Collateral”):
(i) all of Other Pari Passu Lien Obligationsthe Equity Interests of the Borrower;
(ii) all additional Equity Interests issued by the Borrower acquired from time to time acquired by Parent Guarantor in any manner;
(iii) any certificates representing the shares referred to in clause (i) or (ii) above;
(iv) all dividends, cash, interest, instruments and other property from time to time received or otherwise distributed in respect of or in exchange for any or all of the foregoing;
(v) the Purchase Agreement, the Escrow Agreement, the Employment Agreements, the Publicity Rights License Agreement and the other Transaction Documents;
(vi) all Contracts (as defined in the Purchase Agreement) to the extent necessary to subject such Contracts have not been assigned to the Liens Borrower;
(vii) all Books and Records with respect to the Parent Guarantor Collateral; and
(viii) to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing. Notwithstanding anything in this Agreement to the contrary, any covenants made by the Parent Guarantor under this Agreement with respect to any of its assets shall be limited to solely the Parent Guarantor Security Documents such additional Equity Interests Interest and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsthe Parent Guarantor Collateral.
(c) Each Notwithstanding anything in this Agreement to the contrary, (i) “Collateral” shall not include (A) any lease, license, contract or agreement to which the relevant Grantor hereby authorizes is a party, any of its rights or interests thereunder or any assets subject thereto if the Collateral Agent at grant of such security interest shall constitute or result in (1) the abandonment, invalidation or unenforceability of any time and from time right, title or interest of such Grantor therein or result in any Grantor’s loss of use of such asset or (2) in a breach or termination pursuant to time the terms of, or a default under, any such lease, license, contract, or agreement (other than to file in the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any financing statements other applicable law (including fixture filingsthe Bankruptcy Code) with respect or principles of equity); (B) any lease, license, contract or agreement to which the relevant Grantor is a party, any of its rights or interests thereunder or any assets subject thereto to the Collateral extent that any applicable law prohibits the creation of a security interest thereon (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any part thereof successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); or (C) any asset owned by the relevant Grantor that is subject to a Lien described in Section 9.2(a)(ix) or (xi) of the Loan Agreement if the contract or other agreement in such Lien is granted prohibits or requires the consent of any Person other than a Loan Party and amendments thereto that (i) indicate its Affiliates as a condition to the Collateral as “all assets” creation of any other Lien on such Grantor or words of similar effect, asset; and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request covenants made by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Parent Guarantor under this Agreement with respect to or arising out any of the Collateral. Nothing contained in this Agreement its assets shall be construed limited to make solely the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither Parent Guarantor Security Interest and the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonParent Guarantor Collateral.
Appears in 1 contract
Sources: Security Agreement (Martha Stewart Living Omnimedia Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInstruments;
(x) all Investment Intellectual Property;
(xi) all Intellectual PropertyInventory;
(xii) all Investment Property other than the Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xiv) all minerals, oil, gas and As-Extracted Collateral;
(xv) all Supporting Obligations;books and records pertaining to the Article 9 Collateral; and
(xvi) all cash substitutions, replacements, accessions, products and cash equivalents;
proceeds (xviiincluding insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in any Credit Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) and the other provisions of the Credit Documents with respect to Collateral need not be satisfied with respect to (a) motor vehicles or other assets subject to certificates of title and commercial tort claims, (b) any assets over which the granting of security interests in such assets would be prohibited by an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof and was not created or made binding on the assets in contemplation or in connection with the acquisition of such assets (except in the case of assets owned on the Acquisition Date or acquired after the Acquisition Date with Indebtedness of the type permitted pursuant to Section 6.03(b)(iv) of the Term Loan Agreement and any equivalent provision in the Indenture), applicable law or regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, other Senior Secured Note Documentthan proceeds thereof, the Equity Interests and other securities assignment of any direct which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests security interests would require obtaining the consent of any governmental authority or would result in materially adverse tax consequences as reasonably determined by the Borrower in writing delivered to the Collateral Agent, (c) those assets with respect to which, in the reasonable judgment of the Applicable Agent and the Borrower, evidenced in writing delivered to the Agent, the costs or other securities consequences of obtaining or perfecting such a security interest are excessive in view of the benefits to be obtained by the Secured Parties therefrom, (d) any Letter of Credit Rights (other than to the extent a Lien thereon can secure the Senior Secured Notes and/or the guarantees be perfected by filing a customary financing statement), (e) any Excluded Securities, (f) any Pledgor’s right, title or interest in respect thereof without Rule 3-10 any license, contract or Rule 3-16 of Regulation S-X under the Securities Act (agreement to which such Pledgor is a party or any other lawof its right, rule title or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X interest there under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent, that such a grant would violate the terms of applicable law or of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such license, contract or agreement to which such Pledgor is a party (other than to the extent necessary that any such term would be rendered ineffective pursuant to not Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or regulation (including Title 11 of the United States Code) or principles of equity); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (g) any equipment or other asset owned by any Pledgor that is subject to a purchase money lien or a Capitalized Lease Obligation, in each case, as permitted under the Term Loan Agreement and the Indenture and not prohibited by any other Credit Document, if the contract or other agreement in which such requirementLien is granted (or the documentation providing for such Capitalized Lease Obligation) prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted by under Term Loan Agreement and the Indenture and not prohibited by any other Credit Document, (h) any foreign collateral or credit support with respect to such foreign collateral (other than any such Equity Interests assets pledged pursuant to the Pledge Agreement), (i) any real property (owned or leased) or oil and gas properties (owned or leased) other securitiesthan the Mortgaged Properties, and (j) any asset at any time that is not then subject to a Lien securing First-Priority Lien Obligations at such time (the foregoing clauses (a) through (j), the “Excluded Note CollateralAssets”). In such eventWith respect to the Collateral, no control agreements or control arrangements will be required with respect to any Deposit Accounts, Securities Accounts, Commodity Contracts or any other asset, the Security Documents may be amended perfection of a security interest in which specifically requires a control arrangement or modified, without control agreement (other than the consent delivery of Pledged Securities to the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Applicable Agent to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted required by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirementArticle II). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in in, or to or under which such Grantor now has or at any time in the future hereafter may acquire any right, title or interest interest, regardless of where located (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperMoney and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents other Goods and other written materials related to the purchase or import of any InventoryFixtures;
(x) all Investment Property;
(xi) all Intellectual PropertyLetters of Credit and Letter-of-Credit Rights;
(xii) all Pledged CollateralSupporting Obligations;
(xiii) all Records Commercial Tort Claims specifically described on Schedule 12 to the Perfection Certificate, as such schedule may be supplemented from time to time (it being understood such Schedule 12 shall be deemed supplemented by any reference to any Commercial Tort Claim (and the description thereof) contained in a Supplemental Perfection Certificate or pursuant to Section 4.04(e) of this Agreement);
(xiv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxv) to the extent not otherwise included, all Proceedsother personal property of such Grantor, whether tangible or intangible, and all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of, each of the foregoing, any and all Proceeds of any of the foregoing and all collateral security and guarantees given by any person insurance, indemnity, warranty or guaranty payable to such Grantor from time to time with respect to any of the foregoing. Notwithstanding anything herein to the contrary, to the extent and for so long as any asset is an Excluded Asset, the Security Interest granted under this Section shall not attach to, and Article 9 Collateral shall not include, such asset (it being understood that the Security Interest shall immediately attach to, and Article 9 Collateral shall immediately include, any such asset (or any portion thereof) upon such asset (or such portion thereof) ceasing to be an Excluded Asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent (and its designees) at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment to the Collateral Administrative Agent promptly upon written request. The Collateral Administrative Agent agrees, upon request by the Borrower (and at the Borrower’s expense, to promptly furnish copies each of such filings to the Borrower.
(dits designees) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due and performance of all Loan Secured Obligations (whether at stated maturityas scheduled, by upon acceleration or otherwise) and of the all costs of collection and enforcement of such Loan Secured Obligations (but not any other than contingent obligationsSecured Obligations), each Grantor Debtor hereby confirms the pledge conveys, mortgages, pledges and grant assigns to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured PartiesSecurity Trustee, and as security for the payment or performance, as the case may be, hereby creates in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesSecurity Trustee, a continuing first priority security interest in in, but none of its obligations or liabilities respecting, all of Debtor's right, title or and interest in and to the following described property, rights and privileges, whether now owned or hereafter acquired (other than Excluded Payments) (which property, rights and privileges, excluding Excluded Payments, but including all property hereafter specifically subject to the Lien of this Agreement by the terms hereof or any supplement hereto constitute the "COLLATERAL"):
(1) The Airframe which is one EMBRAER [EMB-145 model EMB-135 KL] [EMB-145LR] aircraft with the FAA Registration number of [_____] and the manufacturer's serial number of [______] and the Engines with the manufacturer's serial numbers of [______] and [______], each of which is a[n] [Rolls Royce] ▇▇▇▇▇▇▇ model [AE3007A1/3] [AE3007A1P] engine and is of 750 or more rated takeoff horsepower or the equivalent of such horsepower as the same is now and will hereafter be constituted, whether now owned by the Debtor or hereafter acquired, leased or intended to be leased under the Lease, and in the case of such Engines, whether or not any such Engine shall be installed in or attached to the Airframe or any other airframe, together with (a) all Parts of whatever nature, which are from time to time included within the definitions of "Airframe" or "Engines", whether now owned or hereafter acquired, including all substitutions, renewals and replacements of and additions, improvements, accessions and accumulations to the Airframe and Engines (other than additions, improvements, accessions and accumulations which constitute appliances, parts, instruments, appurtenances, accessories, furnishings or other equipment excluded from the definition of Parts) and (b) all Aircraft Documents;
(2) All right, title, interest, claims and demands of the Debtor, as Lessor, in, to and under the Lease, together with all rights, powers, privileges, options and other benefits of the Debtor as lessor under the Lease, including the immediate and continuing right to receive and collect all Rent, income, revenues, issues, profits, insurance proceeds, condemnation awards and other payments, tenders and security now or hereafter payable to or receivable by the Lessor under the Lease pursuant thereto, and, subject to Section 6.2(b) hereof, the right to make all waivers and agreements, to give and receive copies of all notices and other instruments or communications, to accept surrender or redelivery of the Aircraft or any part thereof, as well as all the rights, powers and remedies on the part of the Debtor, as Lessor under the Lease, to take such action upon the occurrence and during the continuance of a Lease Event of Default thereunder, including the commencement, conduct and consummation of legal, administrative or other proceedings, as shall be permitted by the Lease or by Law, and to do any and all other things whatsoever which the Debtor or any lessor is or may be entitled to do under or in respect of the following assets Lease and properties any right to restitution from the Lessee or any other Person in respect of any determination of invalidity of the Lease;
(3) All right, title, interest, claims and demands of the Debtor in, to and under:
(a) the Purchase Agreement;
(b) the Purchase Agreement Assignment and the Engine Warranty Agreement;
(c) the Bills of Sale; and
(d) any and all other contracts, agreements and instruments relating to the Airframe and Engines or any rights or interests therein to which the Debtor is now or may hereafter be a party; together with all rights, powers, privileges, licenses, easements, options and other benefits of the Debtor under each case whether tangible contract, agreement and instrument referred to in this clause (3), including the right to receive and collect all payments to the Debtor thereunder now or intangiblehereafter payable to or receivable by the Debtor pursuant thereto and, wherever locatedsubject to Section 5.1(f) hereof, the right to make all waivers and agreements, to give and receive notices and other instruments or communications, or to take any other action under or in respect of any thereof or to take such action upon the occurrence of a default thereunder, including the commencement, conduct and consummation of legal, administrative or other proceedings, as shall be permitted thereby or by Law, and now owned to do any and all other things which the Debtor is or at may be entitled to do thereunder and any time hereafter acquired by such Grantor right to restitution from the Lessee, the Owner Participant or any other Person in which such Grantor now has respect of any determination of invalidity of any thereof;
(4) All rents, issues, profits, revenues and other income of the property subjected or at any time in required to be subjected to the future may acquire any Lien of this Security Agreement, including all payments or proceeds payable to the Debtor after termination of the Lease with respect to the Aircraft as the result of the sale, lease or other disposition thereof, and all estate, right, title or and interest (but excluding any Excluded Collateral, collectively, of every nature whatsoever of the “Collateral”):
(i) all AccountsDebtor in and to the same;
(ii5) Without limiting the Cash Collateral Account generality of the foregoing, all insurance and requisition proceeds with respect to the Aircraft or any part thereof, including the insurance required under Section 11 of the Lease;
(as defined in 6) Without limiting the Revolving Credit Agreement) generality of the foregoing, all rights of the Debtor to amounts paid or payable by Lessee to the Debtor under the Participation Agreement and all cashrights of the Debtor to enforce payments of any such amounts thereunder;
(7) Without limiting the generality of the foregoing, securities, Instruments all monies and other property securities from time to time deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory with the Security Trustee pursuant to any terms of this Security Agreement or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related the Lease or required hereby or by the Lease to be held by the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to Security Trustee hereunder as security for the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any obligations of the foregoing;
(xviii) all other personal property whatsoever Lessee under the Lease or of such Grantorthe Debtor hereunder; and
(xix8) All Proceeds of the foregoing; excluding, however, in all events from each of foregoing clauses (1) through (8) inclusive all Excluded Payments and the right to specifically enforce the same or to ▇▇▇ for damages for the breach thereof as provided in Section 6.2(b) hereof.
1. TO HAVE AND TO HOLD all and singular of the aforesaid property unto the Security Trustee and its successors and assigns in trust for the benefit and security of the Lender and for the uses and purposes and subject to the extent not otherwise included, all Proceeds, all accessions to terms and substitutions and replacements for and products of provisions set forth in this Security Agreement. It is hereby further agreed that any and all property described or referred to in the granting clauses hereof which is hereafter acquired by Debtor shall IPSO FACTO, and without any further conveyance, assignment or act on the part of Debtor or the Security Trustee, become and be subject to the Lien and security interest herein granted as fully and completely as though specifically described herein, but nothing contained in this paragraph shall be deemed to modify or change the obligations of Debtor contained in the foregoing paragraphs. Debtor does hereby ratify and all offspringsconfirm the Lease and does hereby agree that it will not violate any covenant or agreement made by it therein, rents profits herein or in any other Collateral Document and products will not take any action not permitted by this Security Agreement, or omit to take any action required by this Security Agreement, the taking or omission of which would reasonably be expected to result in an alteration or impairment of any Collateral Document or any of the foregoing and all collateral security and guarantees given rights created by any person with respect to any of such document or the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings assignment hereunder. Debtor agrees that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to time, upon the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 written request of the Uniform Commercial Code of each applicable jurisdiction Security Trustee, Debtor will promptly and duly execute and deliver or cause to be duly executed and delivered any and all such further instruments and documents as the Security Trustee may reasonably request which are necessary to perfect, preserve or protect the mortgage, security interests and assignments created or intended to be created hereby or to obtain for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, Security Trustee the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description full benefits of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower assignment hereunder and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateralrights and powers herein granted. Nothing contained in this Agreement SECTION 2 shall be construed to make grant the Collateral Agent or any other Secured Party liable as Security Trustee a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner security interest in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonExcluded Payment.
Appears in 1 contract
Security Interest. (a) As security for To secure the prompt payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) and performance of the Loan Obligations (Guaranteed Obligations, the Seller Guaranty and all other than contingent obligations)Seller Obligations, each Grantor the Seller hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, Purchasers and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in and lien upon all right, title or interest in or to any property and all assets of the following assets Seller, whether now or hereafter owned, existing or arising and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in including the future may acquire any right, title or interest following (but excluding any Excluded Collateral, collectively, the “Seller Collateral”):
): (i) all Accounts;
Unsold Receivables, (ii) all Related Security with respect to such Unsold Receivables, (iii) all Collections with respect to such Unsold Receivables (including, without limitation, any Insurance Payments), (iv) the Cash Collateral Account Lock-Boxes and Collection Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Collection Accounts and amounts on deposit therein, (v) all rights (but none of the obligations) of the Seller under the Purchase and Sale Agreements; (vi) all other personal and fixture property or assets of the Seller of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the Revolving Credit AgreementUCC) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations The Administrative Agent (for the benefit of Senior the Secured Note Holders only Parties) shall have, with respect to all the Seller Collateral, and in addition to all the other rights and remedies available to the extent Administrative Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Seller hereby authorizes the Administrative Agent to file financing statements describing the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such Equity Interests wording may be broader in scope than the collateral described in this Agreement.
(c) Immediately upon the occurrence of the Final Payout Date, the Seller Collateral shall be automatically released from the lien created hereby, and this Agreement and all obligations (other securities can secure than those expressly stated to survive such termination) of the Senior Secured Notes and/or Administrative Agent, the guarantees in respect thereof Purchasers, the other Purchaser Parties hereunder and each other party hereto shall terminate, all without Rule 3-10 delivery of any instrument or Rule 3-16 performance of Regulation S-X under any act by any party, and all rights to the Securities Act (or any other lawSeller Collateral shall revert to the Seller; provided, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event however, that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted promptly following written request therefor by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due Seller delivered to the fact that Administrative Agent following any such subsidiary’s Equity Interests termination, and other securities secure at the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part expense of the Collateral securing Seller, the Note Obligations in favor of the Note Secured Parties (but only Administrative Agent shall execute and deliver to the extent necessary Seller UCC-3 termination statements and such other documents as the Seller shall reasonably request to not be subject to evidence such requirementtermination.
(d) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests the grant of security interest pursuant to this Section 3.09 shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties be in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectaddition to, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership to limit or joint venture among modify, the Collateral Agent, any other Secured Party, any Grantor and/or any other Personsale of Sold Assets pursuant to Section 2.01(b) or the Seller’s grant of security interest pursuant to Section 5.06.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Synchronoss Technologies Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAs-Extracted Collateral;
(iii) all Chattel Paper;
(iv) all Documentscash and Deposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all GoodsInstruments;
(viiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights;
(xiii) all Records and Commercial Tort Claims identified on Schedule 12 to the Perfection Certificate;
(xiv) all Securities Accounts;
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor Grantor, and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) Closing Date. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any such Grantor, and naming any such Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Rentech Inc /Co/)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Collateral Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in (the "SECURITY INTEREST") in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):"ARTICLE 9 COLLATERAL"), including, without limitation
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperAccount Collateral, Money and all Deposit Accounts, together with all amounts on deposit from time to time in such Deposit Accounts;
(iv) all Documents;
(v) all EquipmentGeneral Intangibles including all intellectual property, Payment Intangibles and Software;
(vi) all General IntangiblesGoods, including Inventory, Equipment and Fixtures;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual PropertyLetter-of-Credit rights and other Supporting Obligations;
(xiix) all Pledged CollateralAll Commercial Tort Claims;
(xiiixi) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Accessions and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing;
(xiii) all cash or cash equivalents received by the Trustee or the Collateral Agent on behalf of the Trustee pursuant to Article 13 of the Indenture; and
(xiv) all collateral security and guaranties given by any Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yb) in the case of a financing statement filed as a fixture filingfiling or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary (or, in the reasonable opinion of the Collateral Agent, advisable) for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Collateral Agreement (International Wire Group Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Each Grantor hereby confirms the pledge collaterally assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, as security for the payment or performance in full of the Obligations of such Grantor, a security interest (the “Security Interest”) in all right, title or and interest in or of such Grantor in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(ia) all Accounts;
(iib) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including all Electronic Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinTangible Chattel Paper);
(iiic) all Chattel Papercash and Deposit Accounts;
(ivd) all Documents;
(ve) all Equipment, including all Fixtures;
(vif) all General Intangibles;
(viig) all GoodsInstruments;
(viiih) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xi) all Investment Property;
(xi) all Intellectual Property;
(xiij) all Pledged Collateral;
(xiiik) all Records and Supporting Obligations;
(l) all Commercial Tort Claims of such Grantor described in the schedules to the Perfection Certificate in respect of such Grantor (as such schedule may be supplemented from time to time pursuant to any Perfection Certificate Supplement or otherwise);
(m) all other Goods;
(n) all books and records pertaining to the Collateral;
(xivo) all letters other assets, properties and rights of credit under which such Grantor is the beneficiary every kind and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash description and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsinterests therein, including all cash, marketable securitiesmoneys, securities entitlements, financial assets and other funds property, now or hereafter held or received by, or in transit to, any Grantor, the Administrative Agent or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorSecured Party, whether for safekeeping, pledge, custody, transmission, collection or otherwise; and
(xixp) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all of the foregoing and all offspringsforegoing; provided, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding however, that notwithstanding anything to the contrary in clauses (a) through (p) above:
(i) any General Intangible, Chattel Paper, Instrument or Account which by its terms prohibits the creation of a security interest therein (whether by assignment or otherwise) shall be excluded from the Lien of the Security Interest granted under this Section 3.01, and shall not be included in the Collateral of such Grantor, except to the extent that Sections 9-406(d), 9-407(a) or 9-408(a) of the UCC are effective to render any such prohibition ineffective; provided, however, that if any General Intangible, Chattel Paper, Instrument or Account included in the Collateral contains any term, restricting or requiring the consent of any Person (other than a Grantor) obligated thereon to, any exercise of remedies hereunder in respect of, the Security Interest therein granted under this Section 3.01, then the enforcement of such Security Interest under this Agreement shall be subject to Section 5.01(c) (but such provision shall not limit the creation, attachment or perfection of the Security Interest hereunder);
(ii) any other Senior Secured Note Documentpermit, lease, license or franchise shall be excluded from the Equity Interests Lien of the Security Interest granted under this Section 3.01, and other securities shall not be included in the Collateral, to the extent any Law applicable thereto is effective to prohibit the creation of a Security Interest therein;
(iii) any direct or indirect subsidiary of Holdings that are Collateral, including goods and software etc. owned by any Grantor will on the date hereof or hereafter acquired that is subject to a Lien securing a purchase money obligation or Capitalized Lease permitted to be incurred pursuant to the provisions of the Credit Agreement shall be excluded from the Lien of the Security Interest granted under this Section 3.01, and shall not be included in the Collateral, to the extent that the contract or other agreement in which such Lien is granted (or the documentation providing for such purchase money obligation or Capitalized Lease) validly prohibits the creation of any other Lien on such Equipment;
(iv) any cash or escrowed funds of third parties held in accounts of a Grantor shall not be part of the Collateral;
(v) any notes otherwise pledged to third-parties issued pursuant to the Borrower Warehoused Loans shall not be part of the Collateral;
(vi) any tax receivables agreement between HFF and HFF Holdings (and any payments made thereunder) shall not be part of the Collateral; and
(vii) any rights of HFF Holdings and its members to, by and through HFF Acquisition, exchange direct or indirect interests in the Operating Companies for shares of common stock of HFF shall not be part of the Collateral. With respect to property described in clauses (i) through (v) above to the extent not included in the Collateral of such Grantor (the “Excluded Property”), such property shall constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders Excluded Property only to the extent that and for so long as the creation of a Lien on such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations property in favor of the Note Secured Parties Administrative Agent is, and remains, validly prohibited by law or contract, and upon termination of such prohibition (but only however occurring), such property shall cease to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “constitute Excluded Note Collateral”)Property. In such event, the Security Documents The Grantors may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and required from time to time at the request of the Administrative Agent to file in any relevant jurisdiction any financing statements (including fixture filings) with respect give written notice to the Collateral or any part thereof Administrative Agent identifying in reasonable detail the Excluded Property (and amendments thereto stating in such notice that (isuch property constitutes Excluded Property) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide the Administrative Agent with such other information to regarding the Collateral Excluded Property as the Administrative Agent promptly upon written may reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Credit Agreement (HFF, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may beapplicable, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-credit rights;
(xi) all Intellectual Propertythe commercial tort claims specified on Schedule IV;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringscollateral security, rents profits and products of any of the foregoing and all collateral security supporting obligations and guarantees given by any person Person with respect to any of the foregoing. Notwithstanding the foregoing, the Article 9 Collateral shall not include (i) any Equipment that is subject to a purchase money lien or capital lease permitted under the Credit Agreement to the extent the documents relating to such purchase money lien or capital lease would not permit such Equipment to be subject to the Security Interests created hereby and (ii) any general intangibles or other rights arising under any joint venture agreements (other than the agreements governing any Permitted Real Estate Joint Venture) to the extent that customary provisions in such agreements would give any other party to such agreement the right to terminate its obligations thereunder, provided that the exclusions shall only apply to the extent that such termination right would not be rendered ineffective pursuant to the UCC or any other applicable law.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor Pledgor or words of similar effect, such other description as the Collateral Agent may determine and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filingfiling or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agreesto file in any relevant jurisdiction any initial financing statements (including fixture filings, upon request by the Borrower and at the Borrower’s expenseas applicable) or other appropriate filings, to promptly furnish copies of such filings recordings or registrations or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (St. Louis Pharmaceutical Services, LLC)