1Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of all of the Obligations, each Credit Party executing this Agreement hereby grants to Administrative Agent for the benefit of Secured Parties a security interest in and Lien upon all of its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, all of the following property in which it now has or at any time in the future may acquire any right, title or interest: all Accounts; all Deposit Accounts and all funds on deposit therein; all cash and cash equivalents; all commodity contracts; all investments, Equity Interests and Investment Property; all Inventory; all Equipment; all Goods; all Chattel Paper, all Documents; all Instruments; all Books and Records; all General Intangibles; all Supporting Obligations; all Letter-of-Credit Rights; and to the extent not otherwise included, all Proceeds and products of all and any of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing, but excluding in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”). (b) Each Credit Party executing this Agreement and Administrative Agent agree that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Administrative Agent for the benefit of Secured Parties. Each such Credit Party represents, warrants and promises to Agents and Lenders that: (i) such Credit Party is the sole owner of each item of the Collateral upon which it purports to xxxxx x Xxxx pursuant to the Loan Documents, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for Permitted Liens which have priority by operation of law; and (iii) no effective security agreement, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement promises to defend the right, title and interest of Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLC, as Agent.” (c) This Agreement is effective to create in favor of Administrative Agent, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Collateral described therein, except as enforceability may be limited by applicable Debtor Relief Laws and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations). (d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent. (e) Each Credit Party executing this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent. (f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act. (g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detail, and (ii) contain any other information required by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Credit Party agrees to furnish any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof. (h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien in such commercial tort claim.
Appears in 1 contract
1Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of all of the Obligations, each of Borrower and each other Credit Party (in each case, that is not a Canadian Credit Party) executing this Agreement Agreement, or from time to time party hereto, hereby grants to Administrative Agent for the benefit of Secured Parties the Lenders a security interest in and Lien upon all of its rights, title and interests in and to its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, including all of the following property in which it now has or at any time in the future may acquire any right, title or interest:
(i) all Accounts;
(ii) all Deposit Accounts deposit accounts;
(iii) all other bank accounts and all funds on deposit therein; all money, cash and cash equivalents;
(iv) all investment property;
(v) all commodity contractsStock and all Distributions in respect thereof;
(vi) all investmentsgoods (including, Equity Interests without limitation, inventory, equipment, and Investment Propertyfixtures);
(vii) all Inventorychattel paper, documents, documents of title and instruments; all Equipment; all Goods; all Chattel Paper, all Documents; all Instruments;
(viii) all Books and Records;
(ix) all general intangibles (including, without limitation, all Intellectual Property, Intellectual Property applications, contract rights, choses in action, payment intangibles, licenses, Permits, and software, and all rights and interests under any key man life insurance policies);
(x) all General Intangibles; all Supporting Obligations; all Letterletter-of-credit rights;
(xi) all commercial tort claims, including those listed on Disclosure Schedule (6.5);
(xii) all property, including all property of every description, in custody or in transit for any purpose, including safekeeping, collection or pledge, for the account of Borrower or any Credit RightsParty or to which Borrower or any Credit Party may have any right or power, including but not limited to cash;
(xiii) all other goods (including but not limited to fixtures) and personal property, whether tangible or intangible and wherever located;
(xiv) all supporting obligations and consents and agreements of any kind or nature that are material to the operation, management, maintenance and conduct of any Credit Party;
(xv) all Material Real Property of every kind and nature, including leases; and
(xvi) to the extent not otherwise included, all Proceeds Proceeds, tort claims, insurance claims and other rights to payment not otherwise included in the foregoing and products of all and any of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents and profits of, each of the foregoing, but excluding in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets foregoing (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”).. Notwithstanding anything to the contrary contained herein, the term Collateral shall not include any Excluded Assets; provided, that if and when any property shall cease to be Excluded Assets, such property shall automatically be deemed to constitute Collateral and a security interest in such property automatically shall be deemed granted therein. The Grantors shall from time to time, promptly after reasonable request by the Agent, give written notice to the Agent identifying in reasonable detail the Excluded Assets (and stating in such notice that such assets fulfill the criteria to constitute Excluded Assets under the definition thereof) and shall provide to the Agent such other information regarding the Excluded Assets as the Agent may reasonably request.
(b) Each Xxxxxxxx, Agent, each Lender and each other Grantor (in each case, other than Canadian Credit Party executing this Agreement and Administrative Agent agree Parties) agrees that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Administrative Agent for the benefit of Secured Partiesthe Lenders. Each such Grantor that is not a Canadian Credit Party represents, warrants and promises covenants to Agents Agent and Lenders each Lender that: (i) such Credit Party is Grantor has, and shall have, rights in and the sole owner of power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx pursuant to the Loan Documentsthis Agreement, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement Agreement, upon completion of the filings and other actions listed on Disclosure Schedule (6.1) (which, in the case of all filings and other documents referred to in said Schedule, have been delivered to the Agent in duly executed form to the extent applicable) and the filing of UCC-1 financing statements with respect to the Collateral, will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties the Lenders as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) any Grantor and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for (x) to the extent specified in the Intercreditor Agreement, the Liens on the Collateral in favor of Revolving Loan Agent, and (y) Permitted Liens which that have priority by operation of lawlaw (including any Permitted Lien that is a Purchase Money Lien that satisfies the requirements under the Code and/or other applicable law to take priority over the previously perfected Lien on all assets of a debtor); and (iii) no effective security agreement, mortgage, deed of trust, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement Grantor promises to defend the right, title and interest of Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLC, as AgentPersons.”
(c) This Agreement Each Credit Party that is effective not a Canadian Credit Party confirms that value has been given by the Agent to create in favor of Administrative Agenteach such Credit Party, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest that such Credit Party has rights in the Collateral described therein, except as enforceability may be limited (other than after-acquired property) and that such Credit Party and the Agent have not agreed to postpone the time for attachment of the security interests created by applicable Debtor Relief Laws and this Agreement to any of the Collateral. The security interests created by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When this Agreement are intended to attach to: (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) existing Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations).
(d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent.
(e) Each Credit Party executing executes this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent.
(f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.
(g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detailAgreement, and (ii) contain any other information required Collateral subsequently acquired by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to immediately upon each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each such Credit Party agrees to furnish acquiring any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof.
(h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien rights in such commercial tort claimCollateral.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
1Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of all of the Obligations, each Credit Party executing this Agreement hereby grants to Administrative Agent for the benefit of Secured Parties a security interest in and Lien upon all of its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, all of the following property in which it now has or at any time in the future may acquire any right, title or interest: all Accounts; all Deposit Accounts and all funds on deposit therein; all cash and cash equivalents; all commodity contracts; all investments, Equity Interests and Investment Property; all Inventory; all Equipment; all Goods; all Chattel Paper, all Documents; all Instruments; all Books and Records; all General Intangibles; all Supporting Obligations; all Letter-of-Credit Rights; and to the extent not otherwise included, all Proceeds and products of all and any of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing, but excluding in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”).
(b) Each Credit Party executing this Agreement and Administrative Agent agree that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Administrative Agent for the benefit of Secured Parties. Each such Credit Party represents, warrants and promises to Agents Agent and Lenders that: (i) such Credit Party is the sole owner of each item of the Collateral upon which it purports to xxxxx x Xxxx pursuant to the Loan Documents, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for Permitted Liens which have priority by operation of law; and (iii) no effective security agreement, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement promises to defend the right, title and interest of Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark xxxx its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLCBank Hapoalim B.M., as Agent.”
(c) This Agreement is effective to create in favor of Administrative Agent, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Collateral described therein, except as enforceability may be limited by applicable Debtor Relief Laws and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations).
(d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed 75 acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent.
(e) Each Credit Party executing this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent.
(f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act. .
(g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detail, and (ii) contain any other information required by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Credit Party agrees to furnish any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof.
(h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien in such commercial tort claim.
Appears in 1 contract
1Grant of Security Interest. (a) As collateral security Each Debtor hereby grants to the Administrative Agent, or hereby confirms that the Administrative Agent has previously been granted, for the prompt benefit of the holders of the Secured Obligations, a security interest in all of such Debtor’s right, title, and complete interest in and to the following property (the “Collateral”) to secure the payment and performance of the Secured Obligations:
(a) all Accounts (including unbilled accounts and Accounts which constitute Proceeds of Inventory and are treated as accounts receivable on the Obligationsbooks of a Debtor but excluding Accounts arising solely from the sale, each Credit Party executing this Agreement hereby grants to Administrative Agent for the benefit lease, license, assignment or other disposition of Secured Parties a security interest in and Lien upon Term Loan Priority Collateral other than Inventory);
(b) all of its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, all of the following property in which it now has or at any time in the future may acquire any right, title or interest: all Accounts; Specified ABL Facility Priority Collateral;
(c) all Deposit Accounts (other than (i) Deposit Accounts that contain only the Proceeds of the Term Loan Priority Collateral or the proceeds of loans under the Term Loan Agreement, (ii) the Term Loan Escrow Account and (iii) the Term Loan Proceeds Collateral Account) with any bank or other financial institution (including all cash, cash equivalents, financial assets, negotiable instruments and other evidence of payment, and other funds on deposit therein or credited thereto, other than, in each case, to the extent constituting the identifiable Proceeds of Term Loan Priority Collateral);
(d) all Securities Accounts (other than (i) Securities Accounts that contain only the Proceeds of the Term Loan Priority Collateral or the proceeds of loans under the Term Loan Agreement, (ii) the Term Loan Escrow Account and (iii) the Term Loan Proceeds Collateral Account) with any securities intermediary (including any and all Investment Property and all funds on deposit therein; or other property held therein or credited thereto, other than, in each case, to the extent constituting the identifiable Proceeds of Term Loan Priority Collateral);
(e) all cash Commodity Accounts (other than (i) Commodity Accounts that contain only the Proceeds of the Term Loan Priority Collateral or the proceeds of loans under the Term Loan Agreement, (ii) the Term Loan Escrow Account and cash equivalents; (iii) the Term Loan Proceeds Collateral Account) with any commodities intermediary (including any and all commodity contractscontracts and all funds and other property held therein or credited thereto, other than, in each case, to the extent constituting the identifiable Proceeds of Term Loan Priority Collateral);
(f) all accessions to, substitutions for and replacements of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto; all investments, Equity Interests and Investment Property; all Inventory; all Equipment; all Goods; all Chattel Paper, all Documents; all Instruments; all Books and Records; all General Intangibles; all Supporting Obligations; all Letter-of-Credit Rights; and and
(g) to the extent not otherwise included, all Proceeds (including without limitation, all insurance proceeds related to the above), Supporting Obligations and products of any and all and any of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing; provided, but excluding however, that notwithstanding anything to the contrary contained herein or in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”).
(b) Each Credit Party executing this Agreement and Administrative Agent agree shall not constitute nor evidence a grant of a security interest, collateral assignment or any other type of Lien in Excluded Property provided further, that this Agreement createsthe Proceeds of Excluded Property shall not constitute Excluded Property solely by virtue of being Proceeds thereof but only to the extent that such Proceeds otherwise independently constitute Excluded Property hereunder. To the extent that the Collateral is not subject to the UCC, each Debtor collaterally assigns all of such Debtor’s right, title, and is intended interest in and to create, valid and continuing Liens upon such Collateral to the Collateral in favor of Administrative Agent for the benefit of Secured Parties. Each such Credit Party represents, warrants and promises to Agents and Lenders that: (i) such Credit Party is the sole owner of each item holders of the Collateral upon which it purports Secured Obligations to xxxxx x Xxxx pursuant to secure the Loan Documents, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for Permitted Liens which have priority by operation of law; and (iii) no effective security agreement, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement promises to defend the right, title and interest of Administrative Agent in and Secured Obligations to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take full extent that such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted a collateral assignment is possible under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLC, as Agentrelevant Law.”
(c) This Agreement is effective to create in favor of Administrative Agent, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Collateral described therein, except as enforceability may be limited by applicable Debtor Relief Laws and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations).
(d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent.
(e) Each Credit Party executing this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent.
(f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.
(g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detail, and (ii) contain any other information required by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Credit Party agrees to furnish any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof.
(h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien in such commercial tort claim.
Appears in 1 contract
1Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of all of the Obligations, each of Borrower and each other Credit Party (in each case, that is not a Canadian Credit Party) executing this Agreement Agreement, or from time to time party hereto, hereby grants to Administrative Agent for the benefit of Secured Parties the Lenders a security interest in and Lien upon all of its rights, title and interests in and to its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, including all of the following property in which it now has or at any time in the future may acquire any right, title or interest: :
(i) all Accounts; ;
(ii) all Deposit Accounts deposit accounts;
(iii) all other bank accounts and all funds on deposit therein; all money, cash and cash equivalents; ;
(iv) all commodity contracts; investment property;
(v) all investmentsStock and all Distributions in respect thereof;
(vi) all goods (including, Equity Interests without limitation, inventory, equipment, and Investment Property; fixtures);
(vii) all Inventory; all Equipment; all Goods; all Chattel Paperchattel paper, all Documents; all Instruments; documents, documents of title and instruments;
(viii) all Books and Records; ;
(ix) all General Intangibles; general intangibles (including, without limitation, all Supporting Obligations; Intellectual Property, Intellectual Property applications, contract rights, choses in action, payment intangibles, licenses, Permits, and software, and all Letterrights and interests under any key man life insurance policies);
(x) all letter-of-credit rights;
(xi) all commercial tort claims, including those listed on Disclosure Schedule (6.5);
(xii) all property, including all property of every description, in custody or in transit for any purpose, including safekeeping, collection or pledge, for the account of Borrower or any Credit RightsParty or to which Borrower or any Credit Party may have any right or power, including but not limited to cash;
(xiii) all other goods (including but not limited to fixtures) and personal property, whether tangible or intangible and wherever located;
(xiv) all supporting obligations and consents and agreements of any kind or nature that are material to the operation, management, maintenance and conduct of any Credit Party;
(xv) all Material Real Property of every kind and nature, including leases; and
(xvi) to the extent not otherwise included, all Proceeds Proceeds, tort claims, insurance claims and other rights to payment not otherwise included in the foregoing and products of all and any of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents and profits of, each of the foregoing, but excluding in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets foregoing (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”). Notwithstanding anything to the contrary contained herein, the term Collateral shall not include any Excluded Assets; provided, that if and when any property shall cease to be Excluded Assets, such property shall automatically be deemed to constitute Collateral and a security interest in such property automatically shall be deemed granted therein. The Grantors shall from time to time, promptly after reasonable request by the Agent, give written notice to the Agent identifying in reasonable detail the Excluded Assets (and stating in such notice that such assets fulfill the criteria to constitute Excluded Assets under the definition thereof) and shall provide to the Agent such other information regarding the Excluded Assets as the Agent may reasonably request.
(b) Each Xxxxxxxx, Agent, each Lender and each other Grantor (in each case, other than Canadian Credit Party executing this Agreement and Administrative Agent agree Parties) agrees that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Administrative Agent for the benefit of Secured Partiesthe Lenders. Each such Grantor that is not a Canadian Credit Party represents, warrants and promises covenants to Agents Agent and Lenders each Lender that: (i) such Credit Party is Grantor has, and shall have, rights in and the sole owner of power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx pursuant to the Loan Documentsthis Agreement, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement Agreement, upon completion of the filings and other actions listed on Disclosure Schedule (6.1) (which, in the case of all filings and other documents referred to in said Schedule, have been delivered to the Agent in duly executed form to the extent applicable) and the filing of UCC-1 financing statements with respect to the Collateral, will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties the Lenders as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) any Grantor and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for (x) to the extent specified in the Intercreditor Agreement, the Liens on the Collateral in favor of Revolving Loan Agent, and (y) Permitted Liens which that have priority by operation of lawlaw (including any Permitted Lien that is a Purchase Money Lien that satisfies the requirements under the Code and/or other applicable law to take priority over the previously perfected Lien on all assets of a debtor); and (iii) no effective security agreement, mortgage, deed of trust, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement Grantor promises to defend the right, title and interest of Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLC, as AgentPersons.”
(c) This Agreement Each Credit Party that is effective not a Canadian Credit Party confirms that value has been given by the Agent to create in favor of Administrative Agenteach such Credit Party, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest that such Credit Party has rights in the Collateral described therein, except as enforceability may be limited (other than after-acquired property) and that such Credit Party and the Agent have not agreed to postpone the time for attachment of the security interests created by applicable Debtor Relief Laws and this Agreement to any of the Collateral. The security interests created by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When this Agreement are intended to attach to: (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) existing Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations).
(d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent.
(e) Each Credit Party executing executes this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent.
(f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.
(g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detailAgreement, and (ii) contain any other information required Collateral subsequently acquired by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to immediately upon each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each such Credit Party agrees to furnish acquiring any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof.
(h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien rights in such commercial tort claimCollateral.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
1Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of all of the Obligations, each of Borrower and each other Credit Party (in each case, that is not a Canadian Credit Party) executing this Agreement Agreement, or from time to time party hereto, hereby grants to Administrative Agent for the benefit of Secured Parties the Lenders a security interest in and Lien upon all of its rights, title and interests in and to its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, including all of the following property in which it now has or at any time in the future may acquire any right, title or interest:
(i) all Accounts;
(ii) all Deposit Accounts deposit accounts;
(iii) all other bank accounts and all funds on deposit therein; all money, cash and cash equivalents;
(iv) all commodity contractsinvestment property;
(v) all investmentsStock and all Distributions in respect thereof;
(vi) all goods (including, Equity Interests without limitation, inventory, equipment, and Investment Propertyfixtures);
(vii) all Inventorychattel paper, documents, documents of title and instruments; all Equipment; all Goods; all Chattel Paper, all Documents; all Instruments;
(viii) all Books and Records;
(ix) all general intangibles (including, without limitation, all Intellectual Property, Intellectual Property applications, contract rights, choses in action, payment intangibles, licenses, Permits, and software, and all rights and interests under any key man life insurance policies);
(x) all General Intangibles; all Supporting Obligations; all Letterletter-of-credit rights;
(xi) all commercial tort claims, including those listed on Disclosure Schedule (6.5);
(xii) all property, including all property of every description, in custody or in transit for any purpose, including safekeeping, collection or pledge, for the account of Borrower or any Credit RightsParty or to which Borrower or any Credit Party may have any right or power, including but not limited to cash;
(xiii) all other goods (including but not limited to fixtures) and personal property, whether tangible or intangible and wherever located;
(xiv) all supporting obligations and consents and agreements of any kind or nature that are material to the operation, management, maintenance and conduct of any Credit Party;
(xv) all Material Real Property of every kind and nature, including leases; and
(xvi) to the extent not otherwise included, all Proceeds Proceeds, tort claims, insurance claims and other rights to payment not otherwise included in the foregoing and products of all and any of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents and profits of, each of the foregoing, but excluding in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets foregoing (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”).. Notwithstanding anything to the contrary contained herein, the term Collateral shall not include any Excluded Assets; provided, that if and when any property shall cease to be Excluded Assets, such property shall automatically be deemed to constitute Collateral and a security interest in such property automatically shall be deemed granted therein. The Grantors shall from time to time, promptly after reasonable request by the Agent, give written notice to the Agent identifying in reasonable detail the Excluded Assets (and stating in such notice that such assets fulfill the criteria to constitute Excluded Assets under the definition thereof) and shall provide to the Agent such other information regarding the Excluded Assets as the Agent may reasonably request.
(b) Each Xxxxxxxx, Agent, each Lender and each other Grantor (in each case, other than Canadian Credit Party executing this Agreement and Administrative Agent agree Parties) agrees that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Administrative Agent for the benefit of Secured Partiesthe Lenders. Each such Grantor that is not a Canadian Credit Party represents, warrants and promises covenants to Agents Agent and Lenders each Lender that: (i) such Credit Party is Grantor has, and shall have, rights in and the sole owner of power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx pursuant to the Loan Documentsthis Agreement, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement Agreement, upon completion of the filings and other actions listed on Disclosure Schedule (6.1) (which, in the case of all filings and other documents referred to in said Schedule, have been delivered to the Agent in duly executed form to the extent applicable) and the filing of UCC-1 financing statements with respect to the Collateral, will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties the Lenders as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) any Grantor and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for (x) to the extent specified in the Intercreditor Agreement, the Liens on the Collateral in favor of Revolving Loan Agent, and (y) Permitted Liens which that have priority by operation of lawlaw (including any Permitted Lien that is a Purchase Money Lien that satisfies the requirements under the Code and/or other applicable law to take priority over the previously perfected Lien on all assets of a debtor); and (iii) no effective security agreement, mortgage, deed of trust, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement Grantor promises to defend the right, title and interest of Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLC, as AgentPersons.”
(c) This Agreement Each Credit Party that is effective not a Canadian Credit Party confirms that value has been given by the Agent to create in favor of Administrative Agenteach such Credit Party, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest that such Credit Party has rights in the Collateral described therein, except as enforceability may be limited (other than after-acquired property) and that such Credit Party and the Agent have not agreed to postpone the time for attachment of the security interests created by applicable Debtor Relief Laws and this Agreement to any of the Collateral. The security interests created by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When this Agreement are intended to attach to: (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) existing Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations).
(d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent.
(e) Each Credit Party executing executes this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent.
(f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.
(g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detailAgreement, and (ii) contain any other information required Collateral subsequently acquired by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to immediately upon each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each such Credit Party agrees to furnish acquiring any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof.
(h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien rights in such commercial tort claimCollateral.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
1Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of all of the Obligations, each Credit Party executing this Agreement hereby grants to Administrative Agent for the benefit of Secured Parties a security interest in and Lien upon all of its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, all of the following property in which it now has or at any time in the future may acquire any right, title or interest: all Accounts; all Deposit Accounts and all funds on deposit therein; all cash and cash equivalents; all commodity contracts; all investments, Equity Interests and Investment Property; all Inventory; all Equipment; all Goods; all Chattel Paper, all Documents; all Instruments; all Books and Records; all General Intangibles; all Supporting Obligations; all Letter-of-Credit Rights; and to the extent not otherwise included, all Proceeds and products of all and any of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing, but excluding in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”).
(b) Each Credit Party executing this Agreement and Administrative Agent agree that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Administrative Agent for the benefit of Secured Parties. Each such Credit Party represents, warrants and promises to Agents and Lenders that: (i) such Credit Party is the sole owner of each item of the Collateral upon which it purports to xxxxx x Xxxx pursuant to the Loan Documents, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for Permitted Liens which have priority by operation of law; and (iii) no effective security agreement, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement promises to defend the right, title and interest of Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark xxxx its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLC, as Agent.”
(c) This Agreement is effective to create in favor of Administrative Agent, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Collateral described therein, except as enforceability may be limited by applicable Debtor Relief Laws and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations).
(d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent.
(e) Each Credit Party executing this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent.
(f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act. .
(g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detail, and (ii) contain any other information required by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each Credit Party agrees to furnish any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof.
(h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien in such commercial tort claim..
Appears in 1 contract
1Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of all of the Obligations, each of Borrower and each other Credit Party (in each case, that is not a Canadian Credit Party) executing this Agreement Agreement, or from time to time party hereto, hereby grants to Administrative Agent for the benefit of Secured Parties the Lenders a security interest in and Lien upon all of its rights, title and interests in and to its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, including all of the following property in which it now has or at any time in the future may acquire any right, title or interest:
(i) all Accounts; ;
(ii) all Deposit Accounts deposit accounts;
(iii) all other bank accounts and all funds on deposit therein; all money, cash and cash equivalents; ;
(iv) all commodity contracts; investment property;
(v) all investmentsStock and all Distributions in respect thereof;
(vi) all goods (including, Equity Interests without limitation, inventory, equipment, and Investment Property; fixtures);
(vii) all Inventory; all Equipment; all Goods; all Chattel Paperchattel paper, all Documents; all Instruments; documents, documents of title and instruments;
(viii) all Books and Records; ;
(ix) all General Intangibles; general intangibles (including, without limitation, all Supporting Obligations; Intellectual Property, Intellectual Property applications, contract rights, choses in action, payment intangibles, licenses, Permits, and software, and all Letterrights and interests under any key man life insurance policies);
(x) all letter-of-credit rights;
(xi) all commercial tort claims, including those listed on Disclosure Schedule (6.5);
(xii) all property, including all property of every description, in custody or in transit for any purpose, including safekeeping, collection or pledge, for the account of Borrower or any Credit RightsParty or to which Borrower or any Credit Party may have any right or power, including but not limited to cash;
(xiii) all other goods (including but not limited to fixtures) and personal property, whether tangible or intangible and wherever located;
(xiv) all supporting obligations and consents and agreements of any kind or nature that are material to the operation, management, maintenance and conduct of any Credit Party;
(xv) all Material Real Property of every kind and nature, including leases; and and
(xvi) to the extent not otherwise included, all Proceeds Proceeds, tort claims, insurance claims and other rights to payment not otherwise included in the foregoing and products of all and any of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents and profits of, each of the foregoing, but excluding in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets foregoing (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”). Notwithstanding anything to the contrary contained herein, the term Collateral shall not include any Excluded Assets; provided, that if and when any property shall cease to be Excluded Assets, such property shall automatically be deemed to constitute Collateral and a security interest in such property automatically shall be deemed granted therein. The Grantors shall from time to time, promptly after reasonable request by the Agent, give written notice to the Agent identifying in reasonable detail the Excluded Assets (and stating in such notice that such assets fulfill the criteria to constitute Excluded Assets under the definition thereof) and shall provide to the Agent such other information regarding the Excluded Assets as the Agent may reasonably request.
(b) Each Xxxxxxxx, Agent, each Lender and each other Grantor (in each case, other than Canadian Credit Party executing this Agreement and Administrative Agent agree Parties) agrees that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Administrative Agent for the benefit of Secured Partiesthe Lenders. Each such Grantor that is not a Canadian Credit Party represents, warrants and promises covenants to Agents Agent and Lenders each Lender that: (i) such Credit Party is Grantor has, and shall have, rights in and the sole owner of power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx pursuant to the Loan Documentsthis Agreement, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement Agreement, upon completion of the filings and other actions listed on Disclosure Schedule (6.1) (which, in the case of all filings and other documents referred to in said Schedule, have been delivered to the Agent in duly executed form to the extent applicable) and the filing of UCC-1 financing statements with respect to the Collateral, will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties the Lenders as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) any Grantor and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for (x) to the extent specified in the Intercreditor Agreement, the Liens on the Collateral in favor of Revolving Loan Agent, and (y) Permitted Liens which that have priority by operation of lawlaw (including any Permitted Lien that is a Purchase Money Lien that satisfies the requirements under the Code and/or other applicable law to take priority over the previously perfected Lien on all assets of a debtor); and (iii) no effective security agreement, mortgage, deed of trust, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement Grantor promises to defend the right, title and interest of Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLC, as AgentPersons.”
(c) This Agreement Each Credit Party that is effective not a Canadian Credit Party confirms that value has been given by the Agent to create in favor of Administrative Agenteach such Credit Party, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest that such Credit Party has rights in the Collateral described therein, except as enforceability may be limited (other than after-acquired property) and that such Credit Party and the Agent have not agreed to postpone the time for attachment of the security interests created by applicable Debtor Relief Laws and this Agreement to any of the Collateral. The security interests created by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When this Agreement are intended to attach to: (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) existing Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations).
(d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent.
(e) Each Credit Party executing executes this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent.
(f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.
(g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detailAgreement, and (ii) contain any other information required Collateral subsequently acquired by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to immediately upon each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each such Credit Party agrees to furnish acquiring any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof.
(h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien rights in such commercial tort claimCollateral.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
1Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of all of the Obligations, each of Borrower and each other Credit Party (in each case, that is not a Canadian Credit Party) executing this Agreement Agreement, or from time to time party hereto, hereby grants to Administrative Agent for the benefit of Secured Parties the Lenders a security interest in and Lien upon all of its rights, title and interests in and to its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including, without limitation, including all of the following property in which it now has or at any time in the future may acquire any right, title or interest:
(i) all Accounts;
(ii) all Deposit Accounts deposit accounts;
(iii) all other bank accounts and all funds on deposit therein; all money, cash and cash equivalents;
(iv) all investment property;
(v) all commodity contractsStock and all Distributions in respect thereof;
(vi) all investmentsgoods (including, Equity Interests without limitation, inventory, equipment, and Investment Propertyfixtures);
(vii) all Inventorychattel paper, documents, documents of title and instruments; all Equipment; all Goods; all Chattel Paper, all Documents; all Instruments;
(viii) all Books and Records;
(ix) all General Intangiblesgeneral intangibles (including, without limitation, all Intellectual Property, Intellectual Property applications, contract rights, choses in action, payment intangibles, licenses, Permits, and software, and all rights and interests under any key man life insurance policies);
(x) all Supporting Obligations; all Letterletter-of-credit rights;
(xi) all commercial tort claims, including those listed on Disclosure Schedule (6.5);
(xii) all property, including all property of every description, in custody or in transit for any purpose, including safekeeping, collection or pledge, for the account of Borrower or any Credit RightsParty or to which Borrower or any Credit Party may have any right or power, including but not limited to cash;
(xiii) all other goods (including but not limited to fixtures) and personal property, whether tangible or intangible and wherever located;
(xiv) all supporting obligations and consents and agreements of any kind or nature that are material to the operation, management, maintenance and conduct of any Credit Party;
(xv) all Material Real Property of every kind and nature, including leases; and
(xvi) to the extent not otherwise included, all Proceeds Proceeds, tort claims, insurance claims and other rights to payment not otherwise included in the foregoing and products of all and any of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents and profits of, each of the foregoing, but excluding in all events Hazardous Material, the Excluded Equity Interests, and the Excluded Assets foregoing (all of the foregoing, together with any other collateral pledged to Agent for the benefit of Secured Parties pursuant to any other Loan Document, collectively, the “Collateral”).. Notwithstanding anything to the contrary contained herein, the term Collateral shall not include any Excluded Assets; provided, that if and when any property shall cease to be Excluded Assets, such property shall automatically be deemed to constitute Collateral and a security interest in such property automatically shall be deemed granted therein. The Grantors shall from time to time, promptly after reasonable request by the Agent, give written notice to the Agent identifying in reasonable detail the Excluded Assets (and stating in such notice that such assets fulfill the criteria to constitute Excluded Assets under the definition thereof) and shall provide to the Agent such other information regarding the Excluded Assets as the Agent may reasonably request.
(b) Each Xxxxxxxx, Agent, each Lender and each other Grantor (in each case, other than Canadian Credit Party executing this Agreement and Administrative Agent agree Parties) agrees that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Administrative Agent for the benefit of Secured Partiesthe Lenders. Each such Grantor that is not a Canadian Credit Party represents, warrants and promises covenants to Agents Agent and Lenders each Lender that: (i) such Credit Party is Grantor has, and shall have, rights in and the sole owner of power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx pursuant to the Loan Documentsthis Agreement, and has good and marketable title thereto free and clear of any and all Liens or claims of others, other than Permitted Liens; (ii) the security interests granted pursuant to this Agreement Agreement, upon completion of the filings and other actions listed on Disclosure Schedule (6.1) (which, in the case of all filings and other documents referred to in said Schedule, have been delivered to the Agent in duly executed form to the extent applicable) and the filing of UCC-1 financing statements with respect to the Collateral, will constitute valid perfected security interests in all of the Collateral in favor of Administrative Agent for the benefit of Secured Parties the Lenders as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from such Credit Party (other than purchasers of Inventory in the ordinary course of business) any Grantor and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for (x) to the extent specified in the Intercreditor Agreement, the Liens on the Collateral in favor of Revolving Loan Agent, and (y) Permitted Liens which that have priority by operation of lawlaw (including any Permitted Lien that is a Purchase Money Lien that satisfies the requirements under the Code and/or other applicable law to take priority over the previously perfected Lien on all assets of a debtor); and (iii) no effective security agreement, mortgage, deed of trust, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Liens. Each Credit Party executing this Agreement Grantor promises to defend the right, title and interest of Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever (other than with respect to Permitted Liens), and each Credit Party shall take such actions, including (x) the prompt delivery of all negotiable Documents, original Instruments, Chattel Paper and certificated Equity Interests owned by such Credit Party to Administrative Agent, (y) notification of Administrative Agent’s interest in Collateral at Administrative Agent’s request, and (z) the institution of litigation against third parties as shall be prudent in order to protect and preserve such Credit Party’s and Administrative Agent’s respective and several interests in the Collateral. Each Credit Party executing this Agreement shall mark its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. All Chattel Paper shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of FEAC Agent, LLC, as AgentPersons.”
(c) This Agreement Each Credit Party that is effective not a Canadian Credit Party confirms that value has been given by the Agent to create in favor of Administrative Agenteach such Credit Party, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest that such Credit Party has rights in the Collateral described therein, except as enforceability may be limited (other than after-acquired property) and that such Credit Party and the Agent have not agreed to postpone the time for attachment of the security interests created by applicable Debtor Relief Laws and this Agreement to any of the Collateral. The security interests created by general equitable principles (whether enforcement is sought by proceedings in equity or at law). When this Agreement are intended to attach to: (i) any certificates representing such Equity Interests pledged to Administrative Agent (and constituting “certificated securities” within the meaning of the UCC) are delivered to Administrative Agent, (ii) existing Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Administrative Agent of such Collateral, and (iii) the other personal property Collateral described in the Loan Documents, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in each applicable IP Office and such other filings as are specified in the Loan Documents have been completed, the Lien on the Collateral created by the Loan Documents shall (to the extent of the foregoing actions) constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens permitted under the terms of the Loan Documents to have priority over the Liens securing the Obligations).
(d) Each Credit Party executing this Agreement shall take such action reasonably requested by Administrative Agent to obtain waivers or subordinations of Liens from landlords and mortgagees, and each Credit Party shall in all instances obtain signed acknowledgments of Administrative Agent’s Liens from bailees having possession of such Credit Party’s Goods that they hold for the benefit of Administrative Agent.
(e) Each Credit Party executing executes this Agreement shall promptly, and in any event within two (2) Business Days after becoming a beneficiary under a letter of credit, notify Agent thereof and thereafter enter into a tri-party agreement with Administrative Agent and the issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Administrative Agent and directing all payments thereunder to Agent, all in form and substance reasonably satisfactory to Administrative Agent.
(f) Each Credit Party executing this Agreement shall take all steps as Agent may reasonably request to grant Agent control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.
(g) Each Credit Party executing this Agreement hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office in any Uniform Commercial UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (x) as all assets of such Credit Party or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (y) as being of an equal or lesser scope or with greater detailAgreement, and (ii) contain any other information required Collateral subsequently acquired by Part 5 of Article 9 of the UCC or the filing office for acceptance of any financing statement or amendment, including whether each Credit Party is an organization, the type of organization and any organization identification number issued to immediately upon each Credit Party, and in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Each such Credit Party agrees to furnish acquiring any such information to Administrative Agent promptly upon request. Each Credit Party also ratifies its authorization for Administrative Agent to have filed any initial financing statements or amendments thereto if filed prior to the date hereof.
(h) Each Credit Party shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Administrative Agent of any commercial tort claim (as defined in the UCC) acquired by it and unless otherwise consented by Administrative Agent, each Credit Party shall enter into a supplement to this Agreement, granting to Administrative Agent for the benefit of Secured Parties a Lien rights in such commercial tort claimCollateral.
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
