Certain Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than the Company, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition.

Appears in 3 contracts

Samples: Collateral Agreement (Hd Supply, Inc.), Collateral Agreement (Hd Supply, Inc.), Collateral Agreement (Hd Supply, Inc.)

Certain Exceptions. ~~No security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in (collectively,~~ Notwithstanding the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than the Company, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) foregoing provisions of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property;Section: (i) any ~~Vehicles~~ Restricted Subsidiary may elect to convert from a corporation or partnership into a limited liability company and any Restricted Subsidiary (other than any Acquisition Subsidiary at the time obligated in respect of any Indebtedness permitted under Section 6.03(h)) may be merged or consolidated with or into (x) the Borrower if the Borrower shall be the continuing or surviving corporation or (y) MCC or any other Restricted Subsidiary, provided, however, that a Newspaper Entity may not be merged or consolidated with or into MCC or a Restricted Subisidiary unless the surviving entity is a Newspaper Entity; (ii) any Restricted Subsidiary (other than a Newspaper Entity) may sell, lease, transfer or otherwise dispose of any or all of its Property (upon voluntary liquidation or otherwise), provided that any such sale, lease, transfer or other disposition to an Affiliate shall satisfy the requirements of Section 6.09, it being understood that any such sale, lease, transfer or other disposition to an Affiliate of real property that satisfies the requirements of clause (vii) below, shall be deemed to satisfy the requirements of Section 6.09; (iii) any Newspaper Entity (other than any Acquisition Subsidiary obligated at the time in respect of any Indebtedness permitted under Section 6.03(h)) may sell, lease, transfer or otherwise dispose of any or all of its Property (upon voluntary liquidation or otherwise) to any other Newspaper Entity (other than to any Acquisition Subsidiary obligated at the time in respect of any Indebtedness permitted under Section 6.03(h)); (iv) MCC or any of its Restricted Subsidiaries may (whether by way of purchase of assets ~~subject~~ or stock, by merger or consolidation or otherwise) make any acquisition of a business, and the related assets, of any other Person (i.e. any Person other than MCC or any of its Restricted Subsidiaries), provided that: (A) no later than five Business Days prior to ~~certificate~~ the consummation of ~~title~~such acquisition, the Borrower shall have delivered to the Administrative Agent drafts or executed counterparts of the respective agreements or instruments pursuant to which such acquisition is to be consummated (together with any related management, non-compete, employment, option or other material agreements and any lease or other agreement entered into with any Affiliate of the seller) and any schedules or other material ancillary documents to be executed or delivered in connection therewith as are sufficient to demonstrate compliance by the Borrower with the requirements of this Section 6.01(c)(iv) and (B) promptly following request therefor, the Borrower shall deliver copies of such other information or documents relating to such acquisition as any Lender or Lenders (through the Administrative Agent) shall have reasonably requested; the agreements, instruments and other documents referred to above shall provide that (I) neither MCC nor any of its Restricted Subsidiaries shall, in connection with such acquisition, assume any (1) Indebtedness of the seller or sellers (except Indebtedness that is permitted under Section 6.03(h)) or (2) other obligations of the seller or sellers (except for obligations incurred in the ordinary course of business in operating the Property so acquired and reasonably necessary or desirable to the continued operation of such Property) and (jII) ~~so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined~~ all Property to be acquired in ~~any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will~~ connection with such acquisition shall be ~~granted pursuant to this Agreement or any other Note Security Document in any right, title or interest~~ acquired free and clear of any ~~Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made~~ and all Liens (except for Liens that are permitted by ~~the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition.~~Section 6.02);

Appears in 2 contracts

Samples: Credit Agreement (Morris Publishing Group LLC), Credit Agreement (Oak Ridger LLC)

Certain Exceptions. No security interest is or will be granted pursuant to this Agreement or any other ~~Note~~ Security Document in any right, title or interest of any Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~the Company~~Holding, a ~~Restricted~~ Subsidiary of Holding or the Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or and other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in ~~clause (h~~subsection 7.2(h) of the ~~definition of “Permitted Liens” in the Indenture in~~ Credit Agreement (with respect of to Purchase Money Obligations or Capitalized Lease Obligations, ) or ~~a Lien described in clause (o~~7.2(o) of ~~such definition~~ the Credit Agreement (with respect to such ~~a Lien~~ Liens described in ~~clause (h~~such subsection 7.2(h) of ~~such definition), and consists of Equipment~~ the Credit Agreement (or ~~other property financed or refinanced thereby (including through~~ any ~~financing or refinancing~~ corresponding provision of the ~~acquisition~~Second Lien Credit Agreement, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) ABL Credit Agreement or any Additional Credit Facility, provided that such ~~improvements, accessions, proceeds, dividends or distributions,~~ provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) (but in each case only for so long as such Liens are in place); or (y) is subject to a any Lien ~~described in clause (h) of the definition of “Permitted Liens” in the Indenture~~ in respect of Hedging ~~Obligations~~Obligations (as defined in the Credit Agreement, but excluding any Hedging Obligations secured under (A) any Security Document, (B) any ABL Collateral Document (as defined in the ABL/Term Loan Intercreditor Agreement) or a (C) any Additional Collateral Document (as defined in the Base Intercreditor Agreement)) permitted by subsection 7.2 of the Credit Agreement (or any corresponding provision of the Second Lien ~~described~~ Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility, provided that such provision in ~~clause~~ any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (oas reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) of (but only for so long as such ~~definition (with respect to such a Lien described~~ Liens are in ~~clause (h) of such definition~~place), and such Equipment or other property consists solely of (i) cash, Cash ~~Equivalents, Investment Grade Securities and~~ Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or ~~distributions~~ distributions, or to ~~any~~ such Hedging ~~Obligations~~Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A1) any ~~Interest Rate Agreements, Currency Agreements or Commodities Agreements~~ such Hedging Obligations or (B2) any other agreements, instruments or documents related to any such Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this ~~clause~~ subclause (y); (c) any property (and/or related rights and/or assets) (A) that would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (wx) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction ~~permitted under Section 411~~ the proceeds of which are applied pursuant to subsection 3.4 of the ~~Indenture~~ Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, or (xy) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (zB) is subject to any Liens securing Indebtedness incurred in compliance with ~~Section 407(b)(ix~~subsection 7.1(b)(ix) of the ~~Indenture~~Credit Agreement, or Liens permitted ~~by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5~~under subsection 7.2(m)(vii) or ~~(p)(12~~7.2(p)(xii) of the ~~definition~~ Credit Agreement (or in each case any corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility; provided that such ~~term~~ provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the ~~Indenture~~Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent); (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is ~~specifically excluded from~~ described in the proviso to the definition of Pledged ~~Stock by virtue of the proviso contained in the parenthetical to such definition~~Stock; (e) any interest in leased real property (including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters); (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $10,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $10,000,000; (i) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and the Administrative Agent and to the extent such assets would otherwise constitute Term Priority Collateral, the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets ~~(i)~~ would be prohibited by a contract permitted under the ~~Indenture~~Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), including contracts over which the granting of security interests therein would result in termination thereof (in each case, after giving effect to ~~Sections 9~~the applicable anti-~~406(d), 9-407(a), 9-408(a) or 9-409~~ assignment provisions of the ~~UCC (or any successor provision or provisions) or any~~ Code and other applicable law, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code and/or other applicable law ~~(including the Bankruptcy Code) or principles of equity~~notwithstanding such prohibitions), or ~~(ii)~~ to the extent that such security interests would result in material adverse tax consequences to Holding, the Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the ~~Company;~~ Borrower and notified in writing to the Collateral Agent (f) it being understood that the Lenders shall not require the Borrower or any ~~interest in leased real property; (g)~~ of its Subsidiaries to enter into any ~~fee interest in owned real property if the fair market value of such fee interest (as determined in good faith~~ security agreements or pledge agreements governed by ~~the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof~~foreign law); (hk) the Acquisition Agreement and any rights therein or arising thereunder (it being understood that this clause (k) shall not apply to any proceeds of the Acquisition Agreement); (i) any assets specifically requiring perfection through control agreements (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Account, DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent a control agreement is required pursuant to Subsection 4.16 of the ABL Credit Agreement)) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction or, in the case of Pledged Stock, by being held by the Collateral Agent, the Administrative Agent, any Collateral Representative or an Additional Agent as agent for the Collateral Agent or in accordance with the Base Intercreditor Agreement and (ii) (A) so long as the ABL Credit Agreement is in effect, Excluded Accounts (as defined in the ABL Credit Agreement) and (B) at any time that the ABL Credit Agreement is not in effect, deposit accounts used exclusively as escrow, fiduciary or trust accounts or designated disbursement accounts and non-U.S. bank accounts; (m) Foreign Intellectual Property; (in) any ~~Vehicles~~ aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof; (o) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other ~~assets~~ Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for such Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to ~~certificate~~ such requirement; (p) any assets or property of ~~title~~Holding, other than the Pledged Stock of the Borrower; and (jq) ~~so long as~~ any ~~Term Obligations are outstanding~~Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. Notwithstanding the foregoing clauses (a) through (q), prior to the Discharge of ABL Obligations, “Excluded Assets” shall not include any property or asset ~~(or interest therein)~~ that is Term Loan Priority Collateral or ABL Priority Collateral at any time such property or asset (i) constitutes “Collateral” or “Pledged Collateral” under the ABL Collateral Agreement and (ii) for the avoidance of doubt, is not an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded ~~Assets~~Asset” ~~definition~~under the ABL Collateral Agreement.

Appears in 2 contracts

Samples: First Lien Guarantee and Collateral Agreement (Us LBM Holdings, Inc.), First Lien Credit Agreement (Us LBM Holdings, Inc.)

Appears in 2 contracts

Samples: Credit Agreement (Nci Building Systems Inc), Guarantee and Collateral Agreement (Nci Building Systems Inc)

Certain Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any ~~Granting Party under~~ Grantor under, to or in ~~(collectively~~any Excluded Assets. As used in this Agreement, the term “Excluded Assets~~”):~~” means: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~the Company~~Holdings, a Restricted Subsidiary of Holdings or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien ~~described in clause (h) of the definition of “Permitted Liens” in the Indenture~~ in respect of Purchase Money Obligations or Capitalized Lease ~~Obligations~~Obligations permitted by Section 413 of the Indenture as a “Permitted Lien” pursuant to clause (h), or ~~a Lien described in clause (o) of such definition~~ (with respect to such a Lien described in clause (h) of such ~~definition), and consists of Equipment or other property financed or refinanced thereby~~ term) clause (~~including through any financing or refinancing~~ o) of the ~~acquisition, leasing, construction or improvement~~ definition of ~~any~~ such ~~assets~~term (but in each case only for so long as such Liens are in place) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a any Lien ~~described in clause (h) of the definition of “Permitted Liens” in the Indenture~~ in respect of Hedging ~~Obligations~~Obligations permitted by Section 413 of the Indenture as a “Permitted Lien” pursuant to clause (h), or ~~a Lien described in clause (o) of such definition~~ (with respect to such a Lien described in clause (h) of such ~~definition~~term) clause (o) of the definition of such term (but in each case only for so long as such Liens are in place), and such Equipment or other property consists solely of (i) cash, Cash Equivalents, Temporary Cash Investments and Investment Grade ~~Securities and Temporary Cash Investments~~Securities, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (wx) has been sold or otherwise transferred in connection with ~~(i)~~ a Special Purpose Financing, ~~(ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture~~ or (~~iii) an Exempt Sale and Leaseback Transaction, (x~~y) constitutes the ~~Proceeds~~ proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose ~~Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction~~ Financing (other than any payments received by ~~such Granting Party~~ the Company or any Grantor in payment for the sale and transfer of such property in such Special Purpose Financing~~, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction~~), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the ~~Indenture,~~ Indenture or ~~Liens~~ permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such ~~term in the Indenture~~term; (d) ~~Capital Stock which is specifically excluded from~~ any property that would otherwise be included in the ~~definition of Pledged Stock by virtue~~ Security Collateral (and such property shall not be deemed to constitute a part of the ~~proviso contained~~ Security Collateral) if such property has been sold or otherwise transferred in connection with a sale and leaseback transaction permitted under Section 411 of the ~~parenthetical~~ Indenture, or is subject to any Liens permitted under Section 413 of the Indenture and consists of property subject to any such ~~definition~~sale and leaseback transaction or general intangibles related thereto; provided that notwithstanding the foregoing, the security interest of the Note Collateral Agent shall attach to any money, securities or other consideration received by any Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Collateral; (e) Capital Stock that constitutes (i) more than 65% of any series of the outstanding Capital Stock of any Foreign Subsidiary, (ii) the Capital Stock of a Subsidiary of a Foreign Subsidiary or (iii) de minimis shares of a Foreign Subsidiary held by the Company or any Grantor as a nominee or in a similar capacity; (f) any Money, cash, checks, other negotiable instrument, funds and other evidence of payment held in any Deposit Account of the Company or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Company or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations; (g) the Investment Agreement and any rights therein or arising thereunder; (h) any interest in leased real property; (i) any fee interest in owned real property if the fair market value of such fee interest is less than $2.0 million individually; (j) any Vehicles and any other assets subject to certificate of title; (k) Letter of Credit Rights and Commercial Tort Claims individually with a value of less than $3.0 million; (l) assets to the extent a security interest in such assets would result in costs or consequences as reasonably determined by the Company with respect to the granting or perfecting of a security interest that is excessive in view of the benefits to be obtained by the Secured Parties; (m) those assets over which the granting of security interests in such assets ~~(i)~~ would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational documents or joint venture documents of any non-wholly owned Subsidiary (~~after giving effect to Sections 9-406(d)~~including permitted liens, ~~9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity~~leases and licenses), or ~~(ii)~~ to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (hn) Foreign Intellectual Property; (io) any ~~Vehicles~~ Capital Stock and other securities of a Subsidiary to the extent that the pledge of or grant of any other ~~assets~~ Lien on such Capital Stock and other securities results in the Company being required to file separate financial statements of such Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to ~~certificate of title~~such requirement; and (jp) ~~so long as~~ any ~~Term Obligations are outstanding~~Capital Stock of any Foreign Subsidiary, ~~any property or asset (or~~ provided that if the ownership interest ~~therein)~~ in such Capital Stock is not transferred to a Subsidiary of the Company that is not a Grantor substantially concurrently with the consummation of the Transactions or within forty-five days thereafter, such Capital Stock shall no longer be an Excluded Asset pursuant to this clause (~~as defined in any Term Document~~p) ~~or that is otherwise excluded from~~ and shall be deemed to constitute a part of the ~~collateral securing the Term Obligations (~~Security Collateral to the extent ~~so excluded). In addition, no security interest is or will be granted~~ not an Excluded Asset pursuant to ~~this Agreement~~ any of clauses (a) through (o) above. For the avoidance of doubt, if any Grantor receives any payment or ~~any~~ other ~~Note Security Document~~ amount under the Investment Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in ~~any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities~~Section 3.1 above. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (~~e)(ii~~l) or (m) of the preceding “Excluded ~~Assets”~~ Assets definition.

Appears in 2 contracts

Samples: Collateral Agreement (Unistrut International Holdings, LLC), Collateral Agreement (Unistrut International Holdings, LLC)

Appears in 2 contracts

Samples: Guarantee and Collateral Agreement (VWR International, Inc.), Guarantee and Collateral Agreement (VWR International, Inc.)

Certain Exceptions. No security interest is or will be granted pursuant ~~to this Agreement or any other Note Security Document~~ hereto in any right, title or interest of any Granting Party under or in (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than the ~~Company~~Parent Borrower, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in ~~clause (h~~subsection 7.2(h) of the ~~definition~~ Cash Flow Credit Agreement (or, should the subsection numbering or organization of ~~“Permitted Liens” in~~ the ~~Indenture~~ Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in ~~clause (o~~subsection 7.2(o) ~~of such definition~~ (with respect to such a Lien described in ~~clause (h~~subsection 7.2(h)) of ~~such definition~~the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in ~~clause (h~~subsection 7.2(h) of the ~~definition~~ Cash Flow Credit Agreement (or, should the subsection numbering or organization of ~~“Permitted Liens” in~~ the ~~Indenture~~ Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Hedging Obligations, or a Lien described in ~~clause (o~~subsection 7.2(o) ~~of such definition~~ (with respect to such a Lien described in ~~clause (h~~subsection 7.2(h)) of ~~such definition~~the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that (A) would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (wx) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction ~~permitted under Section 411~~ the proceeds of which are applied pursuant to subsection 3.4 of the ~~Indenture~~ Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, (xy) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction) or (z) is subject to any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), or Liens permitted under subsection 7.2(k)(4) or 7.2(p)(12) of the Cash Flow Credit Agreement (yor, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) or (B) is subject to any Permitted Lien and consists of property subject to any such ~~Sale~~ sale and ~~Leaseback Transaction or Exempt Sale and Leaseback Transaction~~ leaseback transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture); (d) each Granting Party acknowledges that certain of the Pledged Collateral of such Granting Party may now or in the future consist of ULC Shares, and that it is the intention of the U.S. ABL Collateral Agent and each Granting Party that neither the U.S. ABL Collateral Agent nor any other Secured Party should under any circumstances prior to realization be held to be a “member” or “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws. Therefore, notwithstanding any provisions to the contrary contained in this Agreement, the ABL Credit Agreement or any other Loan Document, where a Granting Party is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Granting Party, such Granting Party will remain the sole registered and beneficial owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the U.S. ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Granting Party shall be entitled to receive and retain for its own account any dividend or other distribution, if any, in respect of such ULC Shares (except for any dividend or distribution comprised of share certificates representing Pledged Collateral, which shall be delivered to the U.S. ABL Collateral Agent to hold as Pledged Collateral hereunder) and shall have the right to vote such ULC Shares and to control the direction, management and policies of the applicable ULC to the same extent as such Granting Party would if such ULC Shares were not pledged to the U.S. ABL Collateral Agent pursuant hereto. Nothing in this Agreement, the ABL Credit Agreement or any other Loan Document is intended to, and nothing in this Agreement, the ABL Credit Agreement or any other Loan Document shall, constitute the U.S. ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable Granting Party, a member or shareholder of a ULC for the purposes of any ULC Laws (whether listed or unlisted, registered or beneficial), until such time as notice is given to such Granting Party and further steps are taken pursuant hereto or thereto so as to register the U.S. ABL Collateral Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of the ULC Shares. To the extent any provision hereof would have the effect of constituting the U.S. ABL Collateral Agent or any other Secured Party as a member or a shareholder, as applicable, of any ULC prior to such time, such provision shall be severed herefrom and shall be ineffective with respect to ULC Shares which are Pledged Collateral of any Granting Party, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Granting Party which is not ULC Shares. Except upon the exercise of rights of the U.S. ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Granting Party shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the U.S. ABL Collateral Agent or any other Secured Party to: (a) be registered as a shareholder or member of such Issuer; (b) have any notation entered in their favor in the share register of such Issuer; (c) be held out as shareholders or members of such Issuer; (d) receive, directly or indirectly, any dividends, property or other distributions from such Issuer by reason of the U.S. ABL Collateral Agent holding the Security Interests over the ULC Shares; or (e) act as a shareholder of such Issuer, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Issuer or to vote its ULC Shares; (e) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (ef) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the ~~Indenture~~ABL Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the ~~Company~~Borrower; (fg) any interest in leased real property; (gh) any ~~fee interest in owned real~~ property ~~if the fair market value of such fee interest~~ that would not otherwise be ABL Priority Collateral and is an Excluded Asset (as ~~determined~~ such term is defined in ~~good faith by~~ the ~~Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof~~Cash Flow Guarantee and Collateral Agreement); (hi) Foreign Intellectual Property;; and (ij) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition.

Appears in 2 contracts

Samples: Abl Credit Agreement (Hd Supply, Inc.), Guarantee and Collateral Agreement (Hd Supply, Inc.)

Certain Exceptions. No Notwithstanding Section 1.1, no security interest is or will be granted pursuant ~~to this Agreement or any other Note Security Document~~ hereto in any right, title or interest of any ~~Granting Party~~ Grantor under or in (each of (a) through (h) collectively, the “Excluded ~~Assets~~Collateral”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses~~ licenses or other contracts or agreements with or issued by Persons other than ~~the Company,~~ Holdings or a ~~Restricted~~ Subsidiary of Holdings or an Affiliate thereof (collectively, “~~Restrictive~~ Excluded Agreements”) that would otherwise be included in the ~~Security~~ Collateral (and such ~~Restrictive~~ Excluded Agreements shall not be deemed to constitute a part of the ~~Security~~ Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Restrictive~~ Excluded Agreements (in each case, except to the extent ~~that~~any such breach, ~~pursuant to~~ default or termination would be rendered ineffective under the ~~Code~~ UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the ~~granting~~ Secured Creditors shall attach immediately at such time as Grantor’s grant of a security ~~interests~~ interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein ~~can be made without resulting~~ would result in a breach, default or termination of such ~~Restrictive Agreements~~Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (bd) any ~~Equipment~~ rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other ~~property~~ non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the ~~Security~~ Collateral (and such ~~Equipment or other property~~ asset shall not be deemed to constitute a part of the ~~Security~~ Collateral) if such ~~Equipment or other property (x)~~ asset is subject to a Lien ~~described in clause (h~~permitted by Section 10.01(vi) of the ~~definition of “Permitted Liens”~~ Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the ~~Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations~~Collateral (and such Equipment, ~~or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment~~ machinery or other ~~property financed or refinanced thereby (including through any financing or refinancing~~ fixed asset shall not be deemed to constitute a part of the ~~acquisition~~Collateral) if such Equipment, ~~leasing, construction~~ machinery or ~~improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any~~ other ~~assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y)~~ fixed asset is subject to a Lien ~~described in clause (h~~permitted by Section 10.01(vii) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y)Credit Agreement; (c3) any property that would otherwise be included in the ~~Security~~ Collateral (and such property shall not be deemed to constitute a part of the ~~Security~~ Collateral) if such property ~~(w)~~ has been sold or otherwise transferred in connection with ~~(i)~~ a ~~Special Purpose Financing, (ii) a Sale and Leaseback Transaction~~ sale-leaseback transaction permitted under Section ~~411~~ 10.02(xiii) of the ~~Indenture~~ Credit Agreement, or ~~(iii~~is subject to any Liens permitted under Section 10.01(xviii) ~~an Exempt Sale and Leaseback Transaction~~of the Credit Agreement, ~~(x)~~ or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such ~~Liens are in place)~~ Proceeds or ~~(z) is~~ products remain subject to ~~any~~ the Liens ~~securing Indebtedness incurred~~ referenced above in ~~compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to~~ this clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(db)(iii), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j4) ~~so long as any Term Obligations are outstanding,~~ any property or asset that would otherwise be included in the Collateral (and such property or ~~interest therein~~asset shall not be deemed to constitute a part of the Collateral) ~~that~~ if such property or assets is ~~an Excluded Asset~~ subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (~~as defined in any Term Document~~i)(1) ~~or that is otherwise excluded from the collateral securing the Term Obligations~~ through (4), for so long as, and to the extent ~~so excluded). In addition~~that, no the granting or existence of such a security interest is pursuant hereto would result in a breach, default or ~~will~~ termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted ~~pursuant to this Agreement or any other Note Security Document~~ a security interest in ~~any right~~all of its rights, title ~~or interest of any Granting Party~~ and interests under or in ~~any Excluded Subsidiary Securities. The Company will give written notice to~~ such asset, Equipment or other property that is the ~~Note Collateral Agent~~ subject of ~~any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition~~such Lien.

Appears in 2 contracts

Samples: Credit Agreement (Bway Parent Company, Inc.), Security Agreement (BWAY Holding CO)

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Servicemaster Co)

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Great North Imports, LLC)

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Great North Imports, LLC)

Appears in 1 contract

Samples: Abl Credit Agreement (Hd Supply, Inc.)

Certain Exceptions. No security interest is or will be granted pursuant to this Agreement or any other ~~Note~~ Security Document in any right, title or interest of any Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~the Company~~Holding, a ~~Restricted~~ Subsidiary of Holding or the Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or and other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in ~~clause (h~~subsection 7.2(h) of the ~~definition of “Permitted Liens” in the Indenture in~~ Credit Agreement (with respect of to Purchase Money Obligations or Capitalized Lease Obligations, ) or ~~a Lien described in clause (o~~7.2(o) of ~~such definition~~ the Credit Agreement (with respect to such ~~a Lien~~ Liens described in ~~clause (h~~such subsection 7.2(h) of ~~such definition), and consists of Equipment~~ the Credit Agreement (or ~~other property financed or refinanced thereby (including through~~ any ~~financing or refinancing~~ corresponding provision of the ~~acquisition~~Second Lien Credit Agreement, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) ABL Credit Agreement or any Additional Credit Facility, provided that such ~~improvements, accessions, proceeds, dividends or distributions,~~ provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) (but in each case only for so long as such Liens are in place); or (y) is subject to a any Lien ~~described in clause (h) of the definition of “Permitted Liens” in the Indenture~~ in respect of Hedging ~~Obligations~~Obligations (as defined in the Credit Agreement, but excluding any Hedging Obligations secured under (A) any Security Document, (B) any ABL Collateral Document (as defined in the ABL/Term Loan Intercreditor Agreement) or a (C) any Additional Collateral Document (as defined in the Base Intercreditor Agreement)) permitted by subsection 7.2 of the Credit Agreement (or any corresponding provision of the Second Lien ~~described~~ Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility, provided that such provision in ~~clause~~ any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (oas reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) of (but only for so long as such ~~definition (with respect to such a Lien described~~ Liens are in ~~clause (h) of such definition~~place), and such Equipment or other property consists solely of (i) cash, Cash ~~Equivalents, Investment Grade Securities and~~ Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or ~~distributions~~ distributions, or to ~~any~~ such Hedging ~~Obligations~~Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A1) any ~~Interest Rate Agreements, Currency Agreements or Commodities Agreements~~ such Hedging Obligations or (B2) any other agreements, instruments or documents related to any such Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this ~~clause~~ subclause (y); (c) any property (and/or related rights and/or assets) (A) that would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (wx) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction ~~permitted under Section 411~~ the proceeds of which are applied pursuant to subsection 3.4 of the ~~Indenture~~ Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, or (xy) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (zB) is subject to any Liens securing Indebtedness incurred in compliance with ~~Section 407(b)(ix~~subsection 7.1(b)(ix) of the ~~Indenture~~Credit Agreement, or Liens permitted ~~by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5~~under subsection 7.2(m)(vii) or ~~(p)(12~~7.2(p)(xii) of the ~~definition~~ Credit Agreement (or in each case any corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility; provided that such ~~term~~ provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the ~~Indenture~~Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent); (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is ~~specifically excluded from~~ described in the proviso to the definition of Pledged ~~Stock by virtue of the proviso contained in the parenthetical to such definition~~Stock; (e) any interest in leased real property (including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters); (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $10,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $10,000,000; (i) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and the Administrative Agent and to the extent such assets would otherwise constitute Term Priority Collateral, the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets ~~(i)~~ would be prohibited by a contract permitted under the ~~Indenture~~Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), including contracts over which the granting of security interests therein would result in termination thereof (in each case, after giving effect to ~~Sections 9~~the applicable anti-~~406(d), 9-407(a), 9-408(a) or 9-409~~ assignment provisions of the ~~UCC (or any successor provision or provisions) or any~~ Code and other applicable law, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code and/or other applicable law ~~(including the Bankruptcy Code) or principles of equity~~notwithstanding such prohibitions), or ~~(ii)~~ to the extent that such security interests would result in material adverse tax consequences to Holding, the Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the ~~Company;~~ Borrower and notified in writing to the Collateral Agent (f) it being understood that the Lenders shall not require the Borrower or any ~~interest in leased real property; (g)~~ of its Subsidiaries to enter into any ~~fee interest in owned real property if the fair market value of such fee interest (as determined in good faith~~ security agreements or pledge agreements governed by ~~the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof~~foreign law); (hk) ~~Foreign Intellectual Property; (i) any Vehicles~~ the Acquisition Agreement and any ~~other assets subject to certificate of title; and~~ rights therein or arising thereunder (~~j) so long as any Term Obligations are outstanding, any property or asset (or interest therein)~~ it being understood that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (~~e)(ii~~k) shall not apply to any proceeds of the ~~preceding “Excluded Assets” definition.~~Acquisition Agreement);

Appears in 1 contract

Samples: First Lien Credit Agreement (Us LBM Holdings, Inc.)

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (HSI IP, Inc.)

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Hd Supply, Inc.)

Certain Exceptions. ~~No security interest is~~ (i) Notwithstanding any other provision set forth in this Agreement to the contrary, any Bank may at any time and from time to time pledge as collateral for advances, assign or ~~will be granted~~ endorse for discount, or otherwise transfer all or any portion of its rights under this Agreement and its Note, if any, to any Federal Reserve Bank pursuant to the Federal Reserve Act and related regulations of the Board of Governors of the Federal Reserve System (as such act or regulations are then or thereafter in effect or any successor act or regulations), as well as any applicable operating circular or other requirements of such Board of Governors or Federal Reserve Bank (as then or thereafter in effect). Any Federal Reserve Bank may at any time and from time to time subsequently transfer all or any portion of the rights acquired by such Bank pursuant to this subsection to any Person. No such pledge, assignment, endorsement or other transfer shall or have the effect of releasing the Administrative Agent, any Bank or the Borrower from its respective obligations or conferring any obligations on the pledgee, assignee, endorsee or transferee, as the case may be, under this Agreement or any Note. The requirements of subsections (b), (c) and (d) shall be deemed inapplicable to pledges, assignments, endorsements or other ~~Note Security Document~~ transfers permitted by this subsection. (ii) Notwithstanding anything to the contrary contained herein, any Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC") of such Granting Bank, identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any ~~right, title or interest~~ part of any Loan that such Granting ~~Party under or in (collectively~~Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement, ~~the “Excluded Assets”):~~ provided that (a) nothing herein shall constitute a commitment to make any ~~Instruments~~Loan by any SPC and (b) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan or fund any other obligation required to be funded by it hereunder, ~~Contracts~~the Granting Bank shall be obligated to make such Loan or fund such obligation pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall satisfy the obligation of the Granting Bank to make Loans to the same extent, ~~Chattel Paper~~and as if, ~~General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued~~ such Loan were made by ~~Persons other than~~ the ~~Company,~~ Granting Banks. Each party hereto hereby agrees that no SPC shall be liable for any payment under this Agreement for which a ~~Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that~~ Bank would otherwise be ~~included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral)~~ liable, for so long as, and to the ~~extent~~ extent, the related Granting Bank makes such payment. In furtherance of the foregoing, each party hereto hereby agrees that, ~~the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except~~ prior to the ~~extent that~~date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, ~~pursuant to~~ it will not institute against or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings, under the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part laws of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) United States or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect State thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, ~~no security interest~~ notwithstanding anything to the contrary contained in this Section 12.4 any SPC may (A) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to its Granting Bank or to any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit or liquidity enhancement to such SPC. Notwithstanding any other provisions of this Agreement, the Borrower agrees that it will not use the proceeds of any Loan made by a Bank which is funded through an SPC to be used to purchase or carry Margin Stock if such Bank (i) notifies the Borrower that its Loan will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice funded through an SPC and (ii) requests the Borrower prior to the ~~Note Collateral Agent~~ Effective Date not to use the proceeds of ~~any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition~~its Loan for such purpose.

Appears in 1 contract

Samples: Credit Agreement (Eastman Kodak Co)

Appears in 1 contract

Samples: Notes Collateral Agreement (US Foods Holding Corp.)

Certain Exceptions. No security interest is or will be granted pursuant to this Agreement or any other ~~Note~~ Security Document in any right, title or interest of any Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~the Company~~Holdings, a ~~Restricted~~ Subsidiary of Holdings or the Parent Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security ~~Collateral)~~ Collateral for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive ~~Agreements (~~Agreements, in each case, except to the extent that, pursuant to the Code or (including applicable anti-assignment provisions) and other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in ~~clause (h~~subsection 8.2(h) of the ~~definition of “Permitted Liens” in the Indenture in~~ Credit Agreement (with respect of to Purchase Money Obligations or Capitalized Lease Obligations, ) or ~~a Lien described in clause (o~~8.2(o) of ~~such definition~~ the Credit Agreement (with respect to such ~~a Lien~~ Liens described in ~~clause (h~~such subsection 8.2(h) of the Credit Agreement) (but in each case only for so long as such ~~definition~~Liens are in place), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, ; or (y) is subject to a any Lien ~~described in clause (h) of the definition of “Permitted Liens” in the Indenture~~ in respect of Hedging ~~Obligations~~Obligations (as defined in the Credit Agreement, but excluding any Hedging Obligations secured under (A) any Security Document or ~~a Lien described in clause~~ (oB) any Term Loan Priority Collateral Document) permitted by subsection 8.2(h) of the Credit Agreement (but only for so long as such ~~definition (with respect to such a Lien described~~ Liens are in ~~clause (h) of such definition~~place), and such property consists solely of (i) cash, Cash ~~Equivalents, Investment Grade Securities and~~ Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) ~~any~~ assets relating to such ~~assets,~~ proceeds, dividends or ~~distributions or to any Hedging Obligations~~distributions, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A1) ~~any Interest Rate Agreements, Currency Agreements or Commodities Agreements~~ such Hedging Obligations or (B2) any other agreements, instruments or documents related to any such Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this ~~clause~~ subclause (y); (c) any property (and/or related rights and/or assets) that (A) would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (wx) has been sold or otherwise transferred in connection with (i) a Special Purpose ~~Financing~~Financing in accordance with the Credit Agreement, (ii) a Sale and Leaseback Transaction ~~permitted under Section 411~~ the proceeds of ~~the Indenture~~ which are applied pursuant to terms of any Term Credit Agreement, or (iii) an Exempt Sale and Leaseback Transaction, or (xy) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (zB) is subject to any Liens securing Indebtedness incurred in compliance with ~~Section 407(b)(ix~~subsection 8.1(b)(ix) of the ~~Indenture~~Credit Agreement, or Liens permitted ~~by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5~~under subsection 8.2(m)(v) or ~~(p)(12~~8.2(p)(xii) of the ~~definition of such term in the Indenture~~Credit Agreement; (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is ~~specifically excluded from~~ described in the proviso to the definition of Pledged ~~Stock by virtue of the proviso contained in the parenthetical to such definition~~Stock; (e) any interest in leased real property (including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters); (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $10,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000; (i) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other adverse consequences to Holdings or any of its Subsidiaries as reasonably determined in writing by the Parent Borrower and the Administrative Agent that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets ~~(i)~~ would be prohibited by a contract permitted under the ~~Indenture~~Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), including contracts over which the granting of security interests therein would give rise to the right to terminate by the other party to such contract (other than if such other party is Holdings or any Subsidiary of Holdings and no Person other than Holdings or a Subsidiary of Holdings has the right to terminate such contract) (in each case, after giving effect to ~~Sections 9~~the applicable anti-~~406(d), 9-407(a), 9-408(a) or 9-409~~ assignment provisions of the ~~UCC (or any successor provision or provisions) or any~~ Code and other applicable law, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code and/or other applicable law ~~(including the Bankruptcy Code) or principles of equity~~notwithstanding such prohibitions), or ~~(ii)~~ to the extent that such security interests would result in material adverse tax consequences to Holdings, any Borrower or any one or more of Holdings’ or such Borrower’s Subsidiaries as reasonably determined in writing by the ~~Company;~~ Parent Borrower and notified in writing to the Collateral Agent (f) it being understood that the Lenders shall not require any ~~interest in leased real property; (g)~~ Borrower or any ~~fee interest in owned real property if the fair market value~~ of such ~~fee interest (as determined in good faith~~ Borrower’s Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law; provided, for the ~~Company) is less than $5.0 million individually (~~avoidance of doubt, that the foregoing shall not limit the obligation of Holdings to enter into the New Zealand Security Deeds or other ~~than Mortgage Property listed on Schedule 7 to this Agreement as~~ security documents under the laws of ~~the date hereof~~its jurisdiction of organization); (hi) any assets specifically requiring perfection through control agreements (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Account, DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent a control agreement is required pursuant to subsection 4.16 of the Credit Agreement)) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction or, in the case of Pledged Stock, by being held by any Agent and (ii) Excluded Accounts; (l) other than in the case of Holdings (so long as a security interest therein can be obtained solely pursuant to the New Zealand Security Deeds and the filing of one or more financing statements pursuant to the Personal Property Securities Xxx 0000 of New Zealand), Foreign Intellectual Property; (im) any ~~Vehicles and~~ aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets ~~subject to certificate of title~~constituting a part thereof; and (jn) ~~so long as any Term Obligations are outstanding~~other than under the New Zealand Security Deeds, any assets or property of Holdings, other than Pledged Collateral of Holdings. Notwithstanding the foregoing or ~~asset~~ the definition of Pledged Stock, in the event that the holders of any Additional Indebtedness (or ~~interest therein~~an agent or representative on their behalf) ~~that is~~ shall be granted a Lien in any asset or property described in this subsection 3.3 to secure the obligations in respect of such Additional Indebtedness, such asset or property shall cease to be an Excluded Asset (and shall constitute Collateral or Pledged Collateral, as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definitionappropriate.

Appears in 1 contract

Samples: Abl Guarantee and Collateral Agreement (Uci Holdings LTD)

Certain Exceptions. No Notwithstanding Section 1.1, no security interest is or will be granted pursuant ~~to this Agreement or any other Note Security Document~~ hereto in any right, title or interest of any ~~Granting Party~~ Grantor under or in (each of (a) through (o) collectively, the “Excluded ~~Assets~~Collateral”): (a) any leases, licenses, Instruments, Contracts, Chattel Paper, General Intangibles, ~~Copyright Licenses~~Permits, ~~Patent Licenses~~governmental licenses, ~~Trademark Licenses~~state or local franchises, ~~Trade Secret Licenses~~ charters or authorizations or other contracts or agreements with or issued by Persons other than the ~~Company, a Restricted Subsidiary~~ Borrower or Subsidiaries of the Borrower or an Affiliate thereof (collectively, “~~Restrictive~~ Excluded Agreements”) that would otherwise be included in the ~~Security~~ Collateral (and such ~~Restrictive~~ Excluded Agreements shall not be deemed to constitute a part of the ~~Security~~ Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would invalidate or result in a violation, breach, default or termination of such ~~Restrictive~~ Excluded Agreements or create a right of termination in favor of, or require the consent of, any party thereto (in each case other than the Borrower or a Subsidiary Guarantor) (in each case, except to the extent ~~that~~any such violation, ~~pursuant to~~ breach, default, termination, right or consent would be rendered ineffective under the ~~Code~~ UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the ~~granting~~ Secured Creditors shall attach immediately (i) at such time as Grantor’s grant of a security ~~interests therein can be made without resulting~~ interest in such Excluded Agreement no longer results in a violation, breach, default or termination thereof or thereunder or no longer creates such right of termination or such right has been waived or requires such consent or such consent has been obtained, (ii) to the extent severable, to any portion of such ~~Restrictive Agreements);~~Excluded Agreement that does not result in a respective violation, breach, default, termination or right or consent thereof or thereunder and (iii) to any proceeds or receivables of such Excluded Agreement that are not Excluded Collateral; or (b) Equity Interests in any ~~Equipment~~ CFC or ~~other property that would otherwise be included~~ FSHCO, in ~~the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part~~ each case, in excess of 65% of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) total outstanding Voting Equity Interests of such ~~definition (with respect to~~ CFC or FSHCO, as applicable, that is directly owned by such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y)Grantor; (c) any ~~property that~~ intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would ~~otherwise be included in~~ impair the ~~Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold~~ validity or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer enforceability of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indentureintent-to-use trademark application under applicable federal law; (d) ~~Capital Stock which~~ any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein, except to the extent such prohibition is ~~specifically excluded from~~ unenforceable after giving effect to the ~~definition of Pledged Stock by virtue~~ applicable provisions of the ~~proviso contained in the parenthetical to such definition~~UCC or other applicable law; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 located outside of the ~~UCC~~ United States and Canada (~~or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii)~~ solely to the extent ~~that~~ action would be required in such other jurisdictions to obtain such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereofinterests); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition.

Appears in 1 contract

Samples: Abl Credit Agreement (Performance Sports Group Ltd.)

Certain Exceptions. ~~No security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in (collectively,~~ Notwithstanding the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than the Company, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) foregoing provisions of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property;Section: (i) any ~~Vehicles~~ Restricted Subsidiary may elect to convert from a corporation or partnership into a limited liability company and any Restricted Subsidiary (other ~~assets subject to certificate~~ than any Acquisition Subsidiary at the time obligated in respect of ~~title; and~~ any Indebtedness permitted under Section 6.03(h)) may be merged or consolidated with or into (jx) ~~so long as any Term Obligations are outstanding, any property~~ the Borrower if the Borrower shall be the continuing or ~~asset~~ surviving corporation or (~~or interest therein~~y) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement MCC or any other ~~Note Security Document in~~ Restricted Subsidiary, provided, however, that a Newspaper Entity may not be merged or consolidated with or into MCC or a Restricted Subsidiary unless the surviving entity is a Newspaper Entity; (ii) any ~~right~~Restricted Subsidiary (other than a Newspaper Entity) may sell, ~~title~~ lease, transfer or ~~interest~~ otherwise dispose of any ~~Granting Party under~~ or all of its Property (upon voluntary liquidation or otherwise), provided that any such sale, lease, transfer or other disposition to an Affiliate shall satisfy the requirements of Section 6.09, it being understood that any such sale, lease, transfer or other disposition to an Affiliate of real property that satisfies the requirements of clause (vii) below, shall be deemed to satisfy the requirements of Section 6.09; (iii) any Newspaper Entity (other than any Acquisition Subsidiary obligated at the time in ~~any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent~~ respect of any ~~determination made~~ Indebtedness permitted under Section 6.03(h)) may sell, lease, transfer or otherwise dispose of any or all of its Property (upon voluntary liquidation or otherwise) to any other Newspaper Entity (other than to any Acquisition Subsidiary obligated at the time in respect of any Indebtedness permitted under Section 6.03(h)); (iv) MCC or any of its Restricted Subsidiaries may (whether by way of purchase of assets or stock, by merger or consolidation or otherwise) make any acquisition of a business, and the ~~Company as contemplated by clause~~ related assets, of any other Person (~~e)(ii)~~ i.e. any Person other than MCC or any of ~~the preceding “Excluded Assets” definition.~~its Restricted Subsidiaries), provided that:

Appears in 1 contract

Samples: Credit Agreement (Morris Publishing Group LLC)

Certain Exceptions. ~~No security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest~~ The provisions of ~~any Granting Party under or in (collectively, the “Excluded Assets”):~~ subsection (a) above shall not apply to, and Lessee shall have no indemnity liability to any ~~Instruments~~Indemnitee under subsection (a) above with respect to: (i) Taxes imposed (whether by withholding or otherwise) on any Indemnitee which are imposed on, ~~Contracts~~measured in whole or in part by, ~~Chattel Paper~~or based upon the income, ~~General Intangibles~~earnings and profits, ~~Copyright Licenses~~capital or net worth of such Indemnitee or any Tax which is a franchise tax imposed for the privilege of doing business, ~~Patent Licenses~~a capital gains tax, ~~Trademark Licenses~~excess profits tax, ~~Trade Secret Licenses~~ accumulated earnings tax, minimum or alternative minimum tax, tax preference, personal holding company tax, or a gross receipts or gross income tax (other ~~contracts~~ than a tax in the nature of a sales or ~~agreements with~~ use, license, value added, excise or ~~issued~~ property tax) provided, however, that, notwithstanding the foregoing exclusions, there shall not be excluded (A) any net increase in Taxes resulting from the imposition of Taxes by ~~Persons~~ any jurisdiction (other than the ~~Company~~United States or a jurisdiction in which such Indemnitee has its principal place of business) if such Indemnitee would not have been required to file returns with respect to Taxes of such type had the Airship not been used, ~~a Restricted Subsidiary~~ operated or ~~an Affiliate thereof~~ located, or Lessee had not conducted its operations in, such jurisdiction or (~~collectively~~B) in the case of Lessor, ~~“Restrictive Agreements”~~any Taxes (other than Taxes based on or measured by net income) ~~that~~ which are by their terms in lieu of Taxes which would otherwise be ~~included~~ indemnified; (ii) Taxes imposed as a result of a sale, transfer or other disposition (whether voluntary or involuntary) by the Indemnitee of any interest of such Indemnitee in the ~~Security Collateral~~ Airship or any part thereof, or any Operative Agreement (~~and such Restrictive Agreements shall not be deemed to constitute a part~~ other than the leasing of the ~~Security Collateral~~Airship to Lessee pursuant hereto or the purchase of the Airship pursuant to the Purchase Agreement Assignment and the Purchase Agreement, unless such sale, transfer or other disposition shall have occurred (A) ~~for so long as, and~~ because of any act or omission of Lessee under Sections 11 or 12 hereof or (B) at any time while a Default or Event of Default shall be continuing; (iii) Taxes to the extent ~~that, the granting of such a security interest pursuant hereto would result in a breach, default~~ incurred or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions imposed in respect of any ~~such assets, and/or any other assets relating to any such assets~~ period (~~including to any such acquisition, leasing, construction~~ or ~~improvement~~ portion thereof) after the expiration or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (earlier termination hereof with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction Airship (other than pursuant to Section 18 hereof); or (iv) Taxes which result solely from acts or omissions of any ~~payments received by such Granting Party in payment for~~ Indemnitee which are unrelated to the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenturetransactions contemplated by, or ~~Liens permitted by Section 413 of~~ are forbidden by, the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definitionOperative Agreements.

Appears in 1 contract

Samples: Lease Agreement (Airship International LTD)

Certain Exceptions. ~~No security~~ The provisions of Section 21(a)(i) ------------------ shall not apply to, and the Lessee shall have no liability to any Tax Indemnitee under Section 21(a)(i) with respect to: (A) Taxes on, based on, measured by or with respect to the net income (including, without limitation, withholding taxes, surcharges, taxes on, based on or measured by any item(s) of tax preference, minimum taxes and alternative minimum taxes), franchises, excess profit, capital gains, and other similar taxes (but excluding sales or use Taxes) or any Tax Indemnitee; (B) Gross income, gross receipts, and value added taxes imposed by the United States federal government in lieu of income taxes; (C) Taxes which are imposed as a result of any sale, assignment, transfer or other disposition (whether voluntary or involuntary) by a Tax Indemnitee of any interest is in this Lease or ~~will be granted pursuant~~ any Item of Equipment, unless such transfer or disposition results from any exercise by Lessor or any of its remedies resulting from an Event of Default as provided in this Lease; (D) Taxes to the extent of the excess of such Taxes over the amount of such Taxes which would have been imposed and indemnified against had there not been a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by a Tax Indemnitee of any interest in this Lease or any Item of Equipment, unless such transfer results from any exercise by Lessor of any of its remedies in connection with an Event of Default as provided in or permitted by this Lease; (E) Taxes with respect to any Item of Equipment to the extent incurred and imposed in respect of and during any period after the expiration or earlier termination of this Lease with respect to such Item of Equipment; (F) Taxes imposed by any jurisdiction which result from any Tax Indemnitee or an Affiliate of a Tax Indemnitee engaging in activities in that jurisdiction unrelated to those contemplated by this Lease, the Tax Indemnity Agreement or any other ~~Note Security Document in any right, title or interest of any Granting Party under or in (collectively, the “Excluded Assets”):~~Transaction Document; (aG) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than the Company, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed Taxes for which Lessee is obligated to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, indemnify Lessor pursuant to the ~~Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements)~~Tax Indemnity Agreement; (bH) ~~any~~ Taxes which have been collected and remitted by the vendor based upon the Equipment ~~or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part~~ Cost for an Item of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y)Equipment; (cI) Taxes imposed on any ~~property that would otherwise be included in~~ Tax Indemnitee which result from the ~~Security Collateral (and such property shall not be deemed to constitute a part of~~ willful misconduct or the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products negligence of any ~~property that has been sold~~ Tax Indemnitee or ~~otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction~~ any Affiliate of a Tax Indemnitee (other than ~~any payments received~~ willful misconduct or gross negligence imputed to such Tax Indemnitee by ~~such Granting Party~~ reason of its interest in ~~payment for~~ the ~~sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction~~Equipment), . (yJ) ~~is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only~~ Taxes for so long as they are being contested in good faith; provided, however, that Lessor shall be receiving all amounts of Rent payable to -------- ------- it without reduction by reason of such ~~Liens are in place~~Tax and that Lessee has paid all amounts under Section 21(a)(iii)(B) or hereof; (zK) ~~is subject to~~ Taxes resulting from any ~~Liens securing Indebtedness incurred in compliance with~~ prohibited transaction, within the meaning of Section ~~407(b)(ix~~4975(e)(I) of the ~~Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture~~Code; (dL) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of Taxes imposed because any ~~non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (~~Tax Indemnitee or any ~~successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles~~ Affiliate of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) a Tax Indemnitee is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of titlenot a U.S. Person; and (jM) ~~so long as any Term Obligations~~ Taxes that arise out of or are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made caused by ~~the Company as contemplated by clause (e)(ii)~~ breach of the ~~preceding “Excluded Assets” definition~~Tax Indemnitee representations, warranties, or covenants contained in the Lease.

Appears in 1 contract

Samples: Master Lease Agreement (Apollo Gold Corp)

Appears in 1 contract

Samples: Abl Guarantee and Collateral Agreement (Great North Imports, LLC)

Certain Exceptions. ~~No security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right~~The provisions of Section 9.3.1 shall not apply to, ~~title or interest of any Granting Party under or in (collectively~~and Lessee shall have no liability hereunder for, ~~the “Excluded Assets”):~~Taxes: (a) imposed on a Tax Indemnitee by the federal government of the United States or any ~~Instruments~~Taxing Authority of any jurisdiction within the United States in (a) (without regard to this parenthetical) solely as a result of the usage or location of the Aircraft in such jurisdiction by a Lessee Person when such Tax Indemnitee was not incorporated or doing business or otherwise subject to Taxes of such type in such jurisdiction, ~~Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses~~ if in a subsequent taxable period such Indemnitee becomes subject to Taxes of such type as a result of activities or ~~other contracts or agreements with or issued by Persons~~ transactions other than those contemplated by the ~~Company~~Operative Agreements, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent ~~that,~~ that such taxes (and in an amount no more than the ~~granting~~ amount of such Taxes that) would have continued to be imposed solely as a ~~security interest pursuant hereto would~~ result of the usage or location of the Aircraft by a Lessee Person in ~~a breach, default or termination~~ such jurisdiction in the absence of any additional nexus between such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of Tax Indemnitee and such ~~Restrictive Agreements~~jurisdiction); (b) ~~any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute~~ imposed as a ~~part~~ result of the ~~Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h)~~ replacement of the ~~definition of “Permitted Liens” in~~ existing financing agreements with the ~~Indenture in respect of Purchase Money Obligations~~ Operative Agreements and the Express Sublease or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing the issuance of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y)Equipment Notes; (c) on, or with respect to, or measured by, any ~~property~~ trustee fees, commissions or compensation received by Owner Trustee, Pass Through Trustee, Subordination Agent or Mortgagee; (d) on the Trust or the Trust Estate that ~~would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part~~ result from treatment of the ~~Security Collateral~~Trust or the Trust Estate as an entity, such as a corporation, separate and apart from the Owner Participant; (e) ~~if such property (w) has been sold or otherwise transferred~~ that are being contested as provided in ~~connection with (i) a Special Purpose Financing~~Section 9.3.4 hereof, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such ~~Liens are in place) or (z)~~ contest is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenturecontinuing; (df) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of imposed on any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) Tax Indemnitee to the extent that such ~~security interests would~~ Taxes result ~~in material adverse tax consequences as reasonably determined by~~ from the ~~Company; (f)~~ gross negligence or willful misconduct of such Tax Indemnitee, a related Tax Indemnitee or any ~~interest in leased real property~~Affiliate thereof; (g) imposed on or with respect to a Tax Indemnitee (including the transferee in those cases in which the Tax on transfer is imposed on, or is collected from, the transferee) as a result of a transfer or other disposition (including a deemed transfer or disposition) by such Tax Indemnitee or a related Tax Indemnitee (or, in the case of the Owner Participant, by Owner Trustee (unless requested by the Lessee), or, in the case of Taxes imposed on a transferee, by the transferor) of any ~~fee~~ interest in ~~owned real property if~~ the ~~fair market value of such fee interest (as determined in good faith by~~ Aircraft, the ~~Company) is less than $5.0 million individually~~ Airframe, any Engine or any Part, the Rent (other than ~~Mortgage Property listed on Schedule 7~~ the assignment of Rent to ~~this Agreement as~~ the Mortgagee pursuant to the Trust Indenture), the Trust, the Trust Estate, the Trust Indenture Estate, the Lease or any interest arising under the Operative Agreements or any Equipment Note or a transfer or disposition (including a deemed transfer or disposition) of any interest in a Tax Indemnitee (other than (A) a substitution or replacement of the ~~date hereof~~Aircraft, the Airframe, any Engine or any Part by a Lessee Person that is treated for Tax purposes as a transfer or disposition, (B) a transfer pursuant to an exercise of remedies upon a Lease Event of Default that shall have occurred and have been continuing, or (C) a transfer to Lessee pursuant to Section 17.3 of the Lease); (h) ~~Foreign Intellectual Property~~except with respect to gross-ups, imposed subsequent to (and not in respect of) a transfer or other disposition described in paragraph (g) above and not described in the last parenthetical of such paragraph (g) and in excess of those that would have been imposed had there not been a transfer or other disposition by or to such Tax Indemnitee or a related Tax Indemnitee described in paragraph (g) above; (i) ~~any Vehicles~~ imposed on the Owner Participant and ~~any other assets subject~~ indemnified by Lessee pursuant to ~~certificate of title; and~~the Tax Indemnity Agreement; (j) ~~so long~~ imposed with respect to any period after the expiration or earlier termination of the Term and, if required pursuant to the terms of the Lease, the return of possession of the Aircraft to Lessor or placement in storage at the request of Lessor in accordance with the Lease (provided that this exclusion (j) shall not apply to Taxes imposed after such period arising as a result of events occurring prior to such expiration or earlier termination); (k) consisting of any ~~Term Obligations are outstanding~~interest, penalties or additions to tax imposed on a Tax Indemnitee resulting from a failure of such Tax Indemnitee or a related Tax Indemnitee to file any return properly and timely, unless such failure shall be caused by the failure of Lessee to fulfill its obligations, if any, under Section 9.3.6 with respect to such return, PROVIDED that if any such return is required to be filed in a jurisdiction outside the United States, which return would not have been required to be filed in the absence of the transactions contemplated under the Operative Agreements or Lessee's transactions or activities in such jurisdiction, this exclusion shall not apply if (A) Lessee has not informed the Tax Indemnitee in writing of the need to file such return at least 30 days prior to the due date thereof (or such shorter period as would reasonably allow the Tax Indemnitee to file such return if, under the circumstances, the Lessee could not have reasonably informed the Tax Indemnitee of the need to file at least 30 days prior to the due date thereof), or (B) the Tax Indemnitee had determined in good faith that such filing would subject it or any Affiliate to adverse consequences in such jurisdiction for which it had not been (and would not have been) indemnified; (l) resulting from, or that would not have been imposed but for, any ~~property~~ Lessor Liens arising as a result of claims against, or ~~asset~~ acts or omissions of, or otherwise attributable to such Tax Indemnitee or a related Tax Indemnitee; (m) imposed on any Tax Indemnitee as a result of the breach by such Tax Indemnitee or a related Tax Indemnitee of any covenant of such Tax Indemnitee or any Affiliate thereof contained in any Operative Agreement or the inaccuracy of any representation or warranty by such Tax Indemnitee or any Affiliate thereof in any Operative Agreement; (n) in the nature of an intangible or similar Tax (i) upon or with respect to the value or principal amount of the interest ~~therein~~of Loan Participant or any Note Holder in any Equipment Note or the loan evidenced thereby or (ii) upon or with respect to the value of the interest of the Owner Participant in the Trust Estate or the Trust, in each case only if such Taxes are in the nature of franchise Taxes or result from the Tax Indemnitee doing business in the taxing jurisdiction and are imposed because of the place of incorporation or the activities unrelated to the transactions contemplated by the Operative Agreements in the taxing jurisdiction of such Tax Indemnitee; (o) that are included in Lessor's Cost and paid to the appropriate Taxing Authority; (p) imposed on a Tax Indemnitee by a Taxing Authority of a jurisdiction outside the United States within which such Tax Indemnitee is ~~an Excluded Asset (as defined in any Term Document)~~ incorporated or ~~that is otherwise excluded from the collateral securing the Term Obligations (~~maintains its principal place of business or to the extent ~~so excluded)~~that such Taxes would not have been imposed but for a connection between the Tax Indemnitee or a related Tax Indemnitee and such jurisdiction imposing such Tax unrelated to the transactions contemplated by the Operative Agreements; or (q) Taxes relating to ERISA or Section 4975 of the Code. ~~In addition~~For purposes hereof, ~~no security interest is or will be granted pursuant to this Agreement or~~ a Tax Indemnitee and any other ~~Note Security Document in any right~~Tax Indemnitees that are successors, ~~title~~ assigns, agents, servants or ~~interest~~ Affiliates of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definitionsuch Tax Indemnitee shall be related Tax Indemnitees.

Appears in 1 contract

Samples: Participation Agreement (Continental Airlines Inc /De/)

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Servicemaster Co)

Appears in 1 contract

Samples: Revolving Guarantee and Collateral Agreement (Great North Imports, LLC)

Certain Exceptions. No security interest is or will be granted pursuant ~~to this Agreement or any other Note Security Document~~ hereto in any right, title or interest of any Granting Party under or in (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than the ~~Company~~Parent Borrower, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in ~~clause (h~~subsection 7.2(h) of the ~~definition~~ Cash Flow Credit Agreement (or, should the subsection numbering or organization of ~~“Permitted Liens” in~~ the ~~Indenture~~ Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in ~~clause (o~~subsection 7.2(o) ~~of such definition~~ (with respect to such a Lien described in ~~clause (h~~subsection 7.2(h)) of ~~such definition~~the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in ~~clause (h~~subsection 7.2(h) of the ~~definition~~ Cash Flow Credit Agreement (or, should the subsection numbering or organization of ~~“Permitted Liens” in~~ the ~~Indenture~~ Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Hedging Obligations, or a Lien described in ~~clause (o~~subsection 7.2(o) ~~of such definition~~ (with respect to such a Lien described in ~~clause (h~~subsection 7.2(h)) of ~~such definition~~the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that (A) would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (wx) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction ~~permitted under Section 411~~ the proceeds of which are applied pursuant to subsection 3.4 of the ~~Indenture~~ Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, (xy) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction) or (z) is subject to any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), or Liens permitted under subsection 7.2(k)(4) or 7.2(p)(12) of the Cash Flow Credit Agreement (yor, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) or (B) is subject to any Permitted Lien and consists of property subject to any such ~~Sale~~ sale and ~~Leaseback Transaction or Exempt Sale and Leaseback Transaction~~ leaseback transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture); (d) each Granting Party acknowledges that certain of the Pledged Collateral of such Granting Party may now or in the future consist of ULC Shares, and that it is the intention of the U.S. ABL Collateral Agent and each Granting Party that neither the U.S. ABL Collateral Agent nor any other Secured Party should under any circumstances prior to realization be held to be a “member” or “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws. Therefore, notwithstanding any provisions to the contrary contained in this Agreement, the ABL Credit Agreement or any other Loan Document, where a Granting Party is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Granting Party, such Granting Party will remain the sole registered and beneficial owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the U.S. ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Granting Party shall be entitled to receive and retain for its own account any dividend or other distribution, if any, in respect of such ULC Shares (except for any dividend or distribution comprised of share certificates representing Pledged Collateral, which shall be delivered to the U.S. ABL Collateral Agent to hold as Pledged Collateral hereunder) and shall have the right to vote such ULC Shares and to control the direction, management and policies of the applicable ULC to the same extent as such Granting Party would if such ULC Shares were not pledged to the U.S. ABL Collateral Agent pursuant hereto. Nothing in this Agreement, the ABL Credit Agreement or any other Loan Document is intended to, and nothing in this Agreement, the ABL Credit Agreement or any other Loan Document shall, constitute the U.S. ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable Granting Party, a member or shareholder of a ULC for the purposes of any ULC Laws (whether listed or unlisted, registered or beneficial), until such time as notice is given to such Granting Party and further steps are taken pursuant hereto or thereto so as to register the U.S. ABL Collateral Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of the ULC Shares. To the extent any provision hereof would have the effect of constituting the U.S. ABL Collateral Agent or any other Secured Party as a member or a shareholder, as applicable, of any ULC prior to such time, such provision shall be severed herefrom and shall be ineffective with respect to ULC Shares which are Pledged Collateral of any Granting Party, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Granting Party which is not ULC Shares. Except upon the exercise of rights of the U.S. ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Granting Party shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the U.S. ABL Collateral Agent or any other Secured Party to: (a) be registered as a shareholder or member of such Issuer; (b) have any notation entered in their favor in the share register of such Issuer; (c) be held out as shareholders or members of such Issuer; (d) receive, directly or indirectly, any dividends, property or other distributions from such Issuer by reason of the U.S. ABL Collateral Agent holding the Security Interests over the ULC Shares; or (e) act as a shareholder of such Issuer, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Issuer or to vote its ULC Shares; (e) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (ef) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the ~~Indenture~~ABL Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the ~~Company~~Borrower; (fi) any interest in leased ~~real property;~~ Real Property (gii) any ~~fee interest in owned real property if~~ Real Property which is a Flood Property, and (iii) and any Real Property acquired after the ~~fair market value~~ Third Amendment Effective Date which is not a Flood Property, but only for the period commencing on the date of such ~~fee interest (as determined in good faith by~~ acquisition and ending on the ~~Company) is less than $5.0 million individually (other than Mortgage Property listed~~ first date thereafter on ~~Schedule 7 to this Agreement as~~ which each of the ~~date hereof)~~U.S. ABL Collateral Agent, the Administrative Agent, and the U.S. Facility Lenders shall have completed their respective due diligence with respect to such Real Property as contemplated by Section 7.9(e)(iv) of the Credit Agreement and, if applicable, the U.S. ABL Collateral Agent shall have been grated a Lien with respect to such Real Property to the extent required by, and in accordance with, the terms of the Credit Agreement; (h) ~~Foreign Intellectual Property~~any property that would not otherwise be ABL Priority Collateral and is an Excluded Asset (as such term is defined in the Cash Flow Guarantee and Collateral Agreement); (i) Foreign Intellectual Property; and (j) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition.

Appears in 1 contract

Samples: u.s. Guarantee and Collateral Agreement (Hd Supply, Inc.)

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Acterna Corp)

Certain Exceptions. No security interest is or will be granted pursuant ~~to this Agreement or any other Note Security Document~~ hereto in any right, title or interest of any ~~Granting Party~~ Grantor under or in (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, ~~General~~ Intangibles, Copyright Licenses, Patent Licenses, ~~Trademark~~ Trade-xxxx Licenses, Trade Secret Licenses, Industrial Design Licenses (and any Foreign Intellectual Property equivalent of any of the foregoing) or other contracts or agreements with or issued by Persons other than the ~~Company~~Parent Borrower, a Restricted Subsidiary or an Affiliate ~~thereof~~ thereof, (collectively, “Restrictive Agreements”) that would otherwise be included in the ~~Security~~ Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the ~~Security~~ Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the ~~Code~~ PPSA or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the ~~Security~~ Collateral (and such Equipment or other property shall not be deemed to constitute a part of the ~~Security~~ Collateral) if such Equipment or other property (x) is subject to a Lien described in ~~clause (h~~subsection 7.2(h) of the ~~definition of “Permitted Liens” in the Indenture~~ Cash Flow Credit Agreement in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in ~~clause (o~~subsection 7.2(o) ~~of such definition~~ (with respect to such a Lien described in ~~clause (h~~subsection 7.2(h)) of ~~such definition)~~the Cash Flow Credit Agreement, and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in ~~clause (h~~subsection 7.2(h) of the ~~definition of “Permitted Liens” in the Indenture~~ Cash Flow Credit Agreement in respect of Hedging Obligations, or a Lien described in ~~clause (o~~subsection 7.2(o) ~~of such definition~~ (with respect to such a Lien described in ~~clause (h~~subsection 7.2(h)) of ~~such definition)~~the Cash Flow Credit Agreement, and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of ~~subclauses~~ sub- clauses (i) through (iii) of this clause (y);; and (c) any property that would otherwise be included in the ~~Security~~ Collateral (and such property shall not be deemed to constitute a part of the ~~Security~~ Collateral) if such property (wx) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction ~~permitted under Section 411~~ the proceeds of which are applied pursuant to subsection 3.4 of the ~~Indenture~~ ABL Credit Agreement if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, (xy) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with ~~Section 407(b)(ix~~subsection 7.1(b)(ix) of the ~~Indenture~~Cash Flow Credit Agreement, or Liens permitted ~~by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5~~under subsection 7.2(k)(iv) or ~~(p)(12~~7.2(p)(xii) of the ~~definition~~ Cash Flow Credit Agreement. 3.3.1 Each Grantor acknowledges that certain of the Pledged Collateral of such ~~term~~ Grantor may now or in the ~~Indenture; (d) Capital Stock which~~ future consist of ULC Shares, and that it is ~~specifically excluded from~~ the ~~definition of Pledged Stock by virtue~~ intention of the ~~proviso~~ Canadian Collateral Agent and each Grantor that neither the Canadian Collateral Agent nor any other Secured Party should under any circumstances prior to realization be held to be a “member” or a “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws. Therefore, notwithstanding any provisions to the contrary contained in this Agreement, the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this ABL Credit Agreement or any other ~~Note~~ Loan Document, where a Grantor is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Grantor, such Grantor will remain the sole registered and beneficial owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the Canadian Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Grantor shall be entitled to receive and retain for its own account any dividend on or other distribution, if any, in respect of such ULC Shares (except for any dividend or distribution comprised of Pledged Security Certificates of such Grantor, which shall be delivered to the Canadian Collateral Agent to hold hereunder) and shill have the right to vote such ULC Shares and to control the direction, management and policies of the applicable ULC to the same extent as such Grantor would if such ULC Shares were not pledged to the Canadian Collateral Agent pursuant hereto. Nothing in this Agreement, the ABL Credit Agreement or any other Loan Document is intended to, and nothing in this Agreement, the ABL Credit Agreement or any ~~right~~other Loan Document shall, ~~title~~ constitute the Canadian Collateral Agent, any other Secured Party, or ~~interest~~ any other Person other than the applicable Grantor, a member or shareholder of a ULC for the purposes of any ~~Granting Party under~~ ULC Laws (whether listed or unlisted, registered or beneficial), until such time as notice is given to such Grantor and further steps are taken pursuant hereto or thereto so as to register the Canadian Collateral Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of the ULC Shares. To the extent any ~~Excluded Subsidiary Securities. The Company will give written notice to~~ provision hereof would have the ~~Note~~ effect of constituting the Canadian Collateral Agent or any other Secured Party as a member or a shareholder, as applicable, of any ~~determination made by~~ ULC prior to such time, such provision shall be severed herefrom and shall be ineffective with respect to ULC Shares which are Pledged Collateral of any Grantor without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Grantor which is not ULC Shares. Except upon the ~~Company as contemplated by clause (e)(ii)~~ exercise of rights of the ~~preceding “Excluded Assets” definition~~Canadian Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Grantor shall not cause or permit, or enable a Pledged Issuer that is a ULC to cause or permit, the Canadian Collateral Agent or any other Secured Party to: (a) be registered as a shareholder or member of such Pledged Issuer; (b) have any notation entered in their favour in the share register of such Pledged Issuer; (c) be held out as shareholders or members of such Pledged Issuer; (d) receive, directly or indirectly, any dividends, property or other distributions from such Pledged Issuer by reason of the Canadian Collateral Agent holding the Security Interests over the ULC Shares; or (e) act as a shareholder of such Pledged Issuer, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Pledged Issuer or to vote its ULC Shares. 3.3.2 The Collateral shall not include the last day of the term of any lease or agreement therefor but upon the enforcement of the security interest granted hereby in the Collateral, the Grantors or any of them shall stand possessed of such last day in trust to assign the same to any person acquiring such term.

Appears in 1 contract

Samples: Canadian Guarantee and Collateral Agreement (HSI IP, Inc.)

Certain Exceptions. No security interest is or will be granted pursuant ~~to this Agreement or any other Note Security Document~~ ------------------ hereto in any right, title or interest of any Granting Party under or ~~in (collectively, the “Excluded Assets”):~~in: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark ~~Licenses, Trade Secret~~ Licenses or other contracts or agreements with or issued by Persons other than a Subsidiary of the ~~Company, a Restricted Subsidiary or an Affiliate thereof~~ Company (collectively, ~~“Restrictive~~ "Excluded Agreements”") that would otherwise be included in the ------------------- Security Collateral (and such ~~Restrictive~~ Excluded Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Excluded Agreements);; or (b) any Equipment ~~or other property~~ that would otherwise be included in the Security Collateral (and such Equipment ~~or other property~~ shall not be deemed to constitute a part of the Security Collateral) if such Equipment ~~or other property (x)~~ is subject to ~~a Lien described in~~ Permitted Liens permitted under clause (hh)(ii) of the definition of “"Permitted Liens” " in the ~~Indenture in respect of~~ Investment Agreement that secure Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through Obligations not exceeding $25,000,000 at any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y)one time outstanding; (c) any Capital Stock of Holdings I GmbH held by the Primary Borrower (so long as such Capital Stock is equal to or less than 1% of the Capital Stock of Holdings I GmbH); (d) Capital Stock of any Subsidiary listed in Schedule 8 (so long as such Capital Stock is not required to be pledged hereunder pursuant to the Investment Agreement); or (e) any property or asset of such Granting Party to the extent (and solely to the extent) that ~~would otherwise~~ a security interest or other Lien shall not at any time have been created in respect thereof securing Bank Indebtedness or in favor of or for the benefit of any holder of Bank Indebtedness or any agent or representative thereof (including without limitation the Administrative Agent); provided that (i) any property or asset that shall -------- at any time be ~~included in~~ or have been subject to any such security interest or other Lien shall not be excluded from the Security Collateral by operation of this clause (g), regardless of whether such security interest or other Lien is subsequently released, extinguished or otherwise terminated, and (ii) this clause (g) shall terminate and be of no further force or effect, and any such property or asset shall ~~not be deemed to~~ thereupon and thereafter constitute a part of the Security Collateral~~) if such property (w) has been sold or otherwise transferred in connection with (i)~~ , from and after the occurrence of a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset "Termination" (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) Section 11 of the ~~preceding “Excluded Assets” definition~~Intercreditor Agreement).

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Acterna Corp)

Certain Exceptions. ~~No security interest is~~ Notwithstanding the foregoing or ~~will~~ anything to the contrary that may be ~~granted pursuant to~~ contained elsewhere in this ~~Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in (collectively, the “Excluded Assets”):~~Agreement: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than the Company, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included The use restrictions and confidentiality obligations set forth in ~~the Security Collateral (and such Restrictive Agreements~~ Section 3.1 above shall not ~~be deemed~~ apply to ~~constitute a part~~ any of the ~~Security Collateral) for so long as~~Licensed Information which is or becomes lawfully available from any third parties without breaching any confidentiality agreement, ~~and to~~ including a breach of this Agreement by Seller or any of the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements)Seller-Related Parties; (b) Without breaching or violating this Agreement: (i) Seller or any ~~Equipment~~ of the Seller-Related Parties may disclose or furnish any of the Licensed Information pursuant to subpoena or other ~~property~~ legal process, or upon making a good faith determination (after consultation with its outside legal counsel) that ~~would otherwise~~ such disclosure is required to be ~~included~~ made under applicable law , but in any such event it shall be obligated to comply with the ~~Security Collateral~~ procedure set forth in Section 3.3 below; (~~and such Equipment or other property shall not be deemed to constitute a part~~ ii) As owner of the ~~Security Collateral~~Licensed Information, Seller is free to use and permit any of the Seller-Related Parties to use any of the Licensed Information in connection with the conduct of any businesses, provided, however, that (A) if any such ~~Equipment or other property (x) is~~ use with respect to DHRC shall be subject to ~~a Lien described~~ the restrictions set forth in ~~clause (h~~Section 2.1(8) of the ~~definition~~ Asset Purchase Agreement, and (B) all such businesses shall be bound by all of ~~“Permitted Liens” in~~ the ~~Indenture in respect~~ terms and provisions of ~~Purchase Money Obligations~~ this Agreement; (iii) Seller and any of the Seller-Related Parties shall be free during the Confidentiality Period to disclose or ~~Capitalized Lease Obligations, or~~ otherwise furnish to any other Person (a ~~Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition~~"Third Party"), and ~~consists of Equipment or other property financed or refinanced thereby (including through~~ to license any ~~financing or refinancing~~ Third Party to use, any of the ~~acquisition~~Licensed Information, ~~leasing~~provided that such Third Party (1) is not engaged in or, ~~construction~~ to Seller's best knowledge, is not planning to engage in, a Competitive Business, and (2) expressly agrees, in writing, to be bound by all the terms and provisions of this Section 3 and Sections 4, 5, 7, 10 and 11 of this Agreement; (iv) During the Confidentiality Period, Seller or ~~improvement~~ any of the Seller-Related Parties may sell or otherwise transfer ownership of any ~~such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect~~ of ~~any such assets, and/or any other assets relating~~ the Licensed Information to any ~~such assets (including to any such acquisition~~Third Party, ~~leasing~~whether by operation of law or otherwise, ~~construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h)~~ as part of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with ~~(A) any Interest Rate Agreements, Currency Agreements~~ a sale or ~~Commodities Agreements or (B) any~~ other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant transfer to such ~~Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting~~ Third Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any ~~successor provision~~ Subsidiary thereof) of (1) a majority or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as more of the ~~date hereof);~~ outstanding shares of Seller or of any Seller Related Party (~~h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate~~ whether by outright sale of ~~title; and (j) so long as any Term Obligations are outstanding, any property~~ shares or ~~asset (~~a merger or ~~interest therein) that is an Excluded Asset~~ Reorganization (as defined in ~~any Term Document~~the California Corporations Code), (2) substantially all of the assets of Seller, or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any ~~Granting~~ Seller Related Party ~~under~~ or ~~in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent~~ of any ~~determination made~~ businesses conducted by ~~the Company as contemplated~~ any of them, provided that such Third Party agrees, in writing, that it shall be bound by ~~clause (e)(ii)~~ all of the ~~preceding “Excluded Assets” definition~~terms and provisions of this Agreement.

Appears in 1 contract

Samples: Non Competition Agreement (Greg Manning Auctions Inc)

Certain Exceptions. No security interest is or will be granted pursuant to this Agreement or any other ~~Note~~ Security Document in any right, title or interest of any Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~the Company~~Holding, a ~~Restricted~~ Subsidiary of Holding or the Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or and other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in ~~clause~~ subsection 7.2(h) (~~h) of the definition of “Permitted Liens” in the Indenture in~~ with respect of to Purchase Money Obligations or Capitalized Lease Obligations, ) or ~~a Lien described in clause~~ (o) ~~of such definition~~ (with respect to such ~~a Lien~~ Liens described in ~~clause (h~~such subsection 7.2(h)) of ~~such definition), and consists of Equipment~~ the Credit Agreement (or ~~other property financed or refinanced thereby (including through~~ any ~~financing or refinancing of the acquisition, leasing, construction or improvement~~ corresponding provision of any Additional Credit Facility; provided that such ~~assets~~provision is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent) ~~and/or any improvements, accessions, proceeds, dividends or distributions~~ (but in ~~respect of any~~ each case only for so long as such ~~assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof~~Liens are in place) ~~or any such improvements, accessions, proceeds, dividends or distributions,~~ or (y) is subject to any Lien in respect of Hedging Obligations permitted by subsection 7.2 of the Credit Agreement as a ~~Lien described in~~ “Permitted Lien” pursuant to clause (h) of subsection 7.2 of the ~~definition~~ Credit Agreement (or any corresponding provision of ~~“Permitted Liens”~~ any Additional Credit Facility; provided that such provision is not materially less favorable to the Lenders than the corresponding provision in the ~~Indenture~~ Credit Agreement (as reasonably determined in ~~respect of Hedging Obligations~~writing by the Borrower and notified in writing to the Collateral Agent) (but in each case only for so long as such Liens are in place), ~~or a Lien described~~ and, in ~~clause (o)~~ the case of such ~~definition (with respect to~~ other property, such ~~a Lien described in clause (h) of such definition), and~~ other property consists solely of (i) cash, Cash ~~Equivalents, Investment Grade Securities and~~ Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or ~~distributions~~ distributions, or to ~~any~~ such Hedging ~~Obligations~~Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A1) any ~~Interest Rate Agreements, Currency Agreements or Commodities Agreements~~ Hedging Obligations or (B2) any other agreements, instruments or documents related to any such Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this ~~clause~~ subclause (y); (c) any property (and/or related rights and/or assets) (A) that would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (wx) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction ~~permitted under Section 411~~ the proceeds of which are applied pursuant to subsection 3.4 of the ~~Indenture~~ Credit Agreement (or any corresponding provision of any Additional Credit Facility; provided that such provision is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, or (xy) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with ~~Section 407(b)(ix~~subsection 7.1(b)(ix) of the ~~Indenture~~Credit Agreement, or Liens permitted ~~by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5~~under subsection 7.2(k)(iv) or ~~(p)(12~~7.2(p)(xii) of the ~~definition~~ Credit Agreement (or in each case any corresponding provision of any Additional Credit Facility; provided that such ~~term~~ provision is not materially less favorable to the Lenders than the corresponding provision in the ~~Indenture~~Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent); (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is ~~specifically excluded from~~ described in the proviso to the definition of Pledged ~~Stock by virtue of the proviso contained in the parenthetical to such definition~~Stock; (e) any interest in leased real property (including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters); (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $15,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $15,000,000; (i) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and the Administrative Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets ~~(i)~~ would be prohibited by a contract permitted under the ~~Indenture~~Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses) (in each case, after giving effect to ~~Sections 9~~the applicable anti-~~406(d), 9-407(a), 9-408(a) or 9-409~~ assignment provisions of the ~~UCC (or any successor provision or provisions) or any~~ Code, other ~~applicable law (including~~ than proceeds and receivables thereof to the ~~Bankruptcy Code) or principles of equity~~extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or ~~(ii)~~ to the extent that such security interests would result in ~~material~~ adverse tax consequences to Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the ~~Company;~~ Borrower and notified in writing to the Collateral Agent (f) it being understood that the Lenders shall not require the Borrower or any ~~interest in leased real property; (g)~~ of its Subsidiaries to enter into any ~~fee interest in owned real property if the fair market value of such fee interest (as determined in good faith~~ security agreements or pledge agreements governed by ~~the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof~~foreign law); (hk) any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Account) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction or, in the case of Pledged Stock, by being held by the Collateral Agent, any Collateral Representative or an Additional Agent as agent for the Collateral Agent; (l) Foreign Intellectual Property; (im) any ~~Vehicles~~ aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof; (n) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other ~~assets~~ Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for such Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to ~~certificate~~ such requirement; (o) any assets or property of ~~title~~Holding, other than the Pledged Stock of the Borrower; and (jp) ~~so long as~~ any ~~Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined~~ Goods in ~~any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no~~ which a security interest is ~~or will be granted pursuant to this Agreement or any other Note Security Document~~ not perfected by filing a financing statement in ~~any right, title or interest~~ the applicable Grantor’s jurisdiction of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definitionorganization.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Servicemaster Co, LLC)

Appears in 1 contract

Samples: u.s. Guarantee and Collateral Agreement (HSI IP, Inc.)

Certain Exceptions. ~~No security interest is~~ Notwithstanding the foregoing or ~~will~~ anything to the contrary that may be ~~granted pursuant to~~ contained elsewhere in this ~~Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in (collectively, the “Excluded Assets”):~~Agreement: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than the Company, a Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included The use restrictions and confidentiality obligations set forth in ~~the Security Collateral (and such Restrictive Agreements~~ Section 3.1 above shall not ~~be deemed~~ apply to ~~constitute a part~~ any of the ~~Security Collateral) for so long as~~Licensed Information which is or becomes lawfully available from any third parties without breaching any confidentiality agreement, ~~and to~~ including a breach of this Agreement by Seller or any of the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements)Seller-Related Parties; (b) Without breaching or violating this Agreement: (i) Seller or any ~~Equipment~~ of the Seller-Related Parties may disclose or furnish any of the Licensed Information pursuant to subpoena or other ~~property~~ legal process, or upon making a good faith determination (after consultation with its outside legal counsel) that ~~would otherwise~~ such disclosure is required to be ~~included~~ made under applicable law , but in any such event it shall be obligated to comply with the ~~Security Collateral~~ procedure set forth in Section 3.3 below; (~~and such Equipment or other property shall not be deemed to constitute a part~~ ii) As owner of the ~~Security Collateral~~Licensed Information, Seller is free to use and permit any of the Seller-Related Parties to use any of the Licensed Information in connection with the conduct of any businesses, provided , however , that (A) if any such ~~Equipment or other property (x) is~~ use with respect to DHRC shall be subject to ~~a Lien described~~ the restrictions set forth in ~~clause (h~~Section 2.1(8) of the ~~definition~~ Asset Purchase Agreement, and (B) all such businesses shall be bound by all of ~~“Permitted Liens” in~~ the ~~Indenture in respect~~ terms and provisions of ~~Purchase Money Obligations~~ this Agreement; (iii) Seller and any of the Seller-Related Parties shall be free during the Confidentiality Period to disclose or ~~Capitalized Lease Obligations, or~~ otherwise furnish to any other Person (a ~~Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition~~"Third Party"), and ~~consists of Equipment or other property financed or refinanced thereby (including through~~ to license any ~~financing or refinancing~~ Third Party to use, any of the ~~acquisition~~Licensed Information, ~~leasing~~provided that such Third Party (1) is not engaged in or, ~~construction~~ to Seller’s best knowledge, is not planning to engage in, a Competitive Business, and (2) expressly agrees, in writing, to be bound by all the terms and provisions of this Section 3 and Sections 4, 5, 7, 10 and 11 of this Agreement; (iv) During the Confidentiality Period, Seller or ~~improvement~~ any of the Seller-Related Parties may sell or otherwise transfer ownership of any ~~such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect~~ of ~~any such assets, and/or any other assets relating~~ the Licensed Information to any ~~such assets (including to any such acquisition~~Third Party, ~~leasing~~whether by operation of law or otherwise, ~~construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h)~~ as part of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with ~~(A) any Interest Rate Agreements, Currency Agreements~~ a sale or ~~Commodities Agreements or (B) any~~ other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant transfer to such ~~Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting~~ Third Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any ~~successor provision~~ Subsidiary thereof) of (1) a majority or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as more of the ~~date hereof);~~ outstanding shares of Seller or of any Seller Related Party (~~h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate~~ whether by outright sale of ~~title; and (j) so long as any Term Obligations are outstanding, any property~~ shares or ~~asset (~~a merger or ~~interest therein) that is an Excluded Asset~~ Reorganization (as defined in ~~any Term Document~~the California Corporations Code), (2) substantially all of the assets of Seller, or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no security interest is or will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any ~~Granting~~ Seller Related Party ~~under~~ or ~~in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent~~ of any ~~determination made~~ businesses conducted by ~~the Company as contemplated~~ any of them, provided that such Third Party agrees, in writing, that it shall be bound by ~~clause (e)(ii)~~ all of the ~~preceding “Excluded Assets” definition~~terms and provisions of this Agreement.

Appears in 1 contract

Samples: Non Competition Agreement (Collectors Universe Inc)

Certain Exceptions. No security interest is or will be granted pursuant to this Agreement or any other ~~Note~~ Security Document in any right, title or interest of any Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~the Company~~Holding, a ~~Restricted~~ Subsidiary of Holding or the Parent Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or (including applicable anti-assignment provisions) and other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in ~~clause (h~~subsection 8.2(h) of the ~~definition of “Permitted Liens” in the Indenture in~~ Credit Agreement (with respect of to Purchase Money Obligations or Capitalized Lease Obligations, ) or ~~a Lien described in clause (o~~8.2(o) of ~~such definition~~ the Credit Agreement (with respect to such ~~a Lien~~ Liens described in ~~clause (h~~such subsection 8.2(h) of the Credit Agreement (but in each case only for so long as such ~~definition~~Liens are in place), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, ; or (y) is subject to a any Lien ~~described in clause (h) of the definition of “Permitted Liens” in the Indenture~~ in respect of Hedging ~~Obligations~~Obligations (as defined in the Credit Agreement, but excluding any Hedging Obligations secured under (A) any Security Document or ~~a Lien described~~ (B) any Term Loan Priority Collateral Document (as defined in ~~clause~~ the ABL/Term Loan Intercreditor Agreement)) permitted by subsection 8.2 of the Credit Agreement (~~o) of~~ but only for so long as such ~~definition (with respect to such a Lien described~~ Liens are in ~~clause (h) of such definition~~place), and such other property consists solely of (i) cash, Cash ~~Equivalents, Investment Grade Securities and~~ Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, together with proceeds, dividends or distributions thereof, or to ~~any~~ such Hedging ~~Obligations~~Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A1) any ~~Interest Rate Agreements, Currency Agreements or Commodities Agreements~~ Hedging Obligations (as defined in the Credit Agreement) or (B2) any other agreements, instruments or documents related to any such Hedging Obligations (as defined in the Credit Agreement) or to any of the assets referred to in any of subclauses (i) through (iii) of this ~~clause~~ subclause (y); (c) any property (and/or related rights and/or assets) (A) that would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (wx) has been sold or otherwise transferred in connection with (i) a Special Purpose ~~Financing~~Financing in accordance with the Credit Agreement, (ii) a Sale and Leaseback Transaction ~~permitted under Section 411~~ the proceeds of which are applied pursuant to terms of the ~~Indenture~~ First Lien Credit Agreement, the Second Lien Credit Agreement or any Additional Term Credit Facility or (iii) an Exempt Sale and Leaseback Transaction, or (xy) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (zB) is subject to any Liens securing Indebtedness incurred in compliance with ~~Section 407(b)(ix~~subsection 8.1(b)(ix) of the ~~Indenture~~Credit Agreement, or Liens permitted ~~by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5~~under subsection 8.2(m)(vii) or ~~(p)(12~~8.2(p)(xii) of the ~~definition of such term in the Indenture~~Credit Agreement; (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is ~~specifically excluded from~~ described in the proviso to the definition of Pledged ~~Stock by virtue of the proviso contained in the parenthetical to such definition~~Stock; (e) any interest in leased real property (including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters); (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $10,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $10,000,000; (i) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holding or any of its Subsidiaries as reasonably determined in writing by the Parent Borrower and the Administrative Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets ~~(i)~~ would be prohibited by a contract permitted under the ~~Indenture~~Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), including contracts over which the granting of security interests therein would result in termination thereof (in each case, after giving effect to ~~Sections 9~~the applicable anti-~~406(d), 9-407(a), 9-408(a) or 9-409~~ assignment provisions of the ~~UCC (or any successor provision or provisions) or any~~ Code and other applicable law, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code and/or other applicable law ~~(including the Bankruptcy Code) or principles of equity~~notwithstanding such prohibitions), or ~~(ii)~~ to the extent that such security interests would result in material adverse tax consequences to Holding, any Borrower or any one or more of such Borrower’s Subsidiaries as reasonably determined in writing by the ~~Company;~~ Parent Borrower and notified in writing to the Collateral Agent (f) it being understood that the Lenders shall not require any ~~interest in leased real property; (g)~~ Borrower or any ~~fee interest in owned real property if the fair market value~~ of such ~~fee interest (as determined in good faith~~ Borrower’s Subsidiaries to enter into any security agreements or pledge agreements governed by ~~the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof~~foreign law); (hk) the Acquisition Agreement and any rights therein or arising thereunder (it being understood that this clause (k) shall not apply to any proceeds of the Acquisition Agreement); (i) any assets specifically requiring perfection through control agreements (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Account, DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent a control agreement is required pursuant to Subsection 4.16 of the Credit Agreement)) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction or, in the case of Pledged Stock, by being held by the Collateral Agent, the Administrative Agent, or any other Collateral Representative and (ii) Excluded Accounts; (m) Foreign Intellectual Property; (in) any ~~Vehicles~~ aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof; (o) any Capital Stock and other securities of a Subsidiary of the Parent Borrower to the extent that the pledge of or grant of any other ~~assets~~ Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Parent Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for such Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to ~~certificate~~ such requirement; (p) any assets or property of ~~title~~Holding, other than the Pledged Stock of the Parent Borrower; and (jq) ~~so long as~~ any ~~Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined~~ Goods in ~~any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, no~~ which a security interest is ~~or will be granted pursuant to this Agreement or any other Note Security Document~~ not perfected by filing a financing statement in ~~any right, title or interest~~ the applicable Grantor’s jurisdiction of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice to the Note Collateral Agent of any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definitionorganization.

Appears in 1 contract

Samples: Abl Guarantee and Collateral Agreement (Us LBM Holdings, Inc.)

Appears in 1 contract

Samples: Security Agreement (Bway Corp)

Certain Exceptions. ~~No security interest is~~ (i) Notwithstanding any other provision set forth in this Agreement to the contrary, any Bank may at any time and from time to time pledge as collateral for advances, assign or ~~will be granted~~ endorse for discount, or otherwise transfer all or any portion of its rights under this Agreement and its Note, if any, to any Federal Reserve Bank pursuant to the Federal Reserve Act and related regulations of the Board of Governors of the Federal Reserve System (as such act or regulations are then or thereafter in effect or any successor act or regulations), as well as any applicable operating circular or other requirements of such Board of Governors or Federal Reserve Bank (as then or thereafter in effect). Any Federal Reserve Bank may at any time and from time to time subsequently transfer all or any portion of the rights acquired by such Bank pursuant to this subsection to any Person. No such pledge, assignment, endorsement or other transfer shall or have the effect of releasing the Administrative Agent, any Bank or the Borrower from its respective obligations or conferring any obligations on the pledgee, assignee, endorsee or transferee, as the case may be, under this Agreement or any Note. The requirements of subsections (b), (c) and (d) shall be deemed inapplicable to pledges, assignments, endorsements or other ~~Note Security Document~~ transfers permitted by this subsection. (ii) Notwithstanding anything to the contrary contained herein, any Bank (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”) of such Granting Bank, identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any ~~right, title or interest~~ part of any Loan that such Granting ~~Party under or in (collectively~~Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement, ~~the “Excluded Assets”):~~ provided that (a) nothing herein shall constitute a commitment to make any ~~Instruments~~Loan by any SPC and (b) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan or fund any other obligation required to be funded by it hereunder, ~~Contracts~~the Granting Bank shall be obligated to make such Loan or fund such obligation pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall satisfy the obligation of the Granting Bank to make Loans to the same extent, ~~Chattel Paper~~and as if, ~~General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued~~ such Loan were made by ~~Persons other than~~ the ~~Company,~~ Granting Banks. Each party hereto hereby agrees that no SPC shall be liable for any payment under this Agreement for which a ~~Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that~~ Bank would otherwise be ~~included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral)~~ liable, for so long as, and to the ~~extent~~ extent, the related Granting Bank makes such payment. In furtherance of the foregoing, each party hereto hereby agrees that, ~~the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except~~ prior to the ~~extent that~~date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, ~~pursuant to~~ it will not institute against or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings, under the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part laws of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) United States or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect State thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, ~~no security interest~~ notwithstanding anything to the contrary contained in this Section 11.4 any SPC may (A) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to its Granting Bank or to any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit or liquidity enhancement to such SPC. Notwithstanding any other provisions of this Agreement, the Borrower agrees that it will not use the proceeds of any Loan made by a Bank which is funded through an SPC to be used to purchase or carry Margin Stock if such Bank (i) notifies the Borrower that its Loan will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice funded through an SPC and (ii) requests the Borrower prior to the ~~Note Collateral Agent~~ Effective Date not to use the proceeds of ~~any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition~~its Loan for such purpose.

Appears in 1 contract

Samples: 364 Day Credit Agreement (Eastman Kodak Co)

Appears in 1 contract

Samples: Security Agreement (Bway Corp)

Certain Exceptions. ~~No security interest is~~ (i) Notwithstanding any other provision set forth in this Agreement to the contrary, any Bank may at any time and from time to time pledge as collateral for advances, assign or ~~will be granted~~ endorse for discount, or otherwise transfer all or any portion of its rights under this Agreement and its Note, if any, to any Federal Reserve Bank pursuant to the Federal Reserve Act and related regulations of the Board of Governors of the Federal Reserve System (as such act or regulations are then or thereafter in effect or any successor act or regulations), as well as any applicable operating circular or other requirements of such Board of Governors or Federal Reserve Bank (as then or thereafter in effect). Any Federal Reserve Bank may at any time and from time to time subsequently transfer all or any portion of the rights acquired by such Bank pursuant to this subsection to any Person. No such pledge, assignment, endorsement or other transfer shall or have the effect of releasing the Administrative Agent, any Bank or the Borrower from its respective obligations or conferring any obligations on the pledgee, assignee, endorsee or transferee, as the case may be, under this Agreement or any Note. The requirements of subsections (b), (c) and (d) shall be deemed inapplicable to pledges, assignments, endorsements or other ~~Note Security Document~~ transfers permitted by this subsection. (ii) Notwithstanding anything to the contrary contained herein, any Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC") of such Granting Bank, identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any ~~right, title or interest~~ part of any Loan that such Granting ~~Party under or in (collectively~~Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement, ~~the “Excluded Assets”):~~ provided that (a) nothing herein shall constitute a commitment to make any ~~Instruments~~Loan by any SPC and (b) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan or fund any other obligation required to be funded by it hereunder, ~~Contracts~~the Granting Bank shall be obligated to make such Loan or fund such obligation pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall satisfy the obligation of the Granting Bank to make Loans to the same extent, ~~Chattel Paper~~and as if, ~~General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued~~ such Loan were made by ~~Persons other than~~ the ~~Company,~~ Granting Banks. Each party hereto hereby agrees that no SPC shall be liable for any payment under this Agreement for which a ~~Restricted Subsidiary or an Affiliate thereof (collectively, “Restrictive Agreements”) that~~ Bank would otherwise be ~~included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral)~~ liable, for so long as, and to the ~~extent~~ extent, the related Granting Bank makes such payment. In furtherance of the foregoing, each party hereto hereby agrees that, ~~the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except~~ prior to the ~~extent that~~date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, ~~pursuant to~~ it will not institute against or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings, under the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements); (b) any Equipment or other property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part laws of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) United States or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in clause (h) of the definition of “Permitted Liens” in the Indenture in respect of Hedging Obligations, or a Lien described in clause (o) of such definition (with respect to such a Lien described in clause (h) of such definition), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect State thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (w) has been sold or otherwise transferred in connection with (i) a Special Purpose Financing, (ii) a Sale and Leaseback Transaction permitted under Section 411 of the Indenture or (iii) an Exempt Sale and Leaseback Transaction, (x) constitutes the Proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction), (y) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture, or Liens permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term in the Indenture; (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the Indenture, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (f) any interest in leased real property; (g) any fee interest in owned real property if the fair market value of such fee interest (as determined in good faith by the Company) is less than $5.0 million individually (other than Mortgage Property listed on Schedule 7 to this Agreement as of the date hereof); (h) Foreign Intellectual Property; (i) any Vehicles and any other assets subject to certificate of title; and (j) so long as any Term Obligations are outstanding, any property or asset (or interest therein) that is an Excluded Asset (as defined in any Term Document) or that is otherwise excluded from the collateral securing the Term Obligations (to the extent so excluded). In addition, ~~no security interest~~ notwithstanding anything to the contrary contained in this Section 11.4 any SPC may (A) with notice to , but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to its Granting Bank or to any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit or liquidity enhancement to such SPC. Notwithstanding any other provisions of this Agreement, the Borrower agrees that it will not use the proceeds of any Loan made by a Bank which is funded through an SPC to be used to purchase or carry Margin Stock if such Bank (i) notifies the Borrower that its Loan will be granted pursuant to this Agreement or any other Note Security Document in any right, title or interest of any Granting Party under or in any Excluded Subsidiary Securities. The Company will give written notice funded through an SPC and (ii) requests the Borrower prior to the ~~Note Collateral Agent~~ Effective Date not to use the proceeds of ~~any determination made by the Company as contemplated by clause (e)(ii) of the preceding “Excluded Assets” definition~~its Loan for such purpose.

Appears in 1 contract

Samples: Credit Agreement (Eastman Kodak Co)

Common use of Certain Exceptions Clause in Contracts