Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral; (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock; (e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations; (f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement); (g) 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); (h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually; (i) any Vehicles and any assets subject to certificate of title; (j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000; (k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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; (l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law); (m) 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 or an Additional Agent as agent for the Collateral Agent; (n) Foreign Intellectual Property; (o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof; (p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement; (q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and (r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 2 contracts
Sources: First Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.), First Lien Guarantee and Collateral Agreement (PharMEDium Healthcare Holdings, Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party U.S. Grantor under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than HoldingsHolding, a Subsidiary of Holdings or Holding, the Borrower Parent Borrower, a Restricted Subsidiary or an Affiliate of any of the foregoing 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 and any 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 (hsubsection 8.2(e) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o8.2(n) (with respect to such Liens described in such clause (h)subsection 8.2(e) of the definition ABL Credit Agreement) of “Permitted Liens” in the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 extent that the corresponding provision in agreements governing such Purchase Money Obligations or Capitalized Lease Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (hsubsection 8.2(d) of the definition thereof in the ABL Credit Agreement (or any corresponding provision that do not constitute Secured Bank Product Obligations of the Second Lien 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 extent that the corresponding provision in agreements governing such Hedging Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.2 of the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the Collateral Agent shall attach to any money, securities or other consideration received by any U.S. Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Security Collateral;
(d) each U.S. Pledgor acknowledges that certain of the Pledged Collateral of such U.S. Pledgor may now or in the future consist of ULC Shares, and that it is the intention of the ABL Collateral Agent and each U.S. Pledgor that neither the 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 U.S. Pledgor is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such U.S. Pledgor, such U.S. Pledgor 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 ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each U.S. Pledgor 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 Collateral Representative 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 U.S. Pledgor would if such ULC Shares were not pledged to the 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 ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable U.S. Pledgor, 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 U.S. Pledgor and further steps are taken pursuant hereto or thereto so as to register the 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 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 U.S. Pledgor, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any U.S. Pledgor which is not ULC Shares. Except upon the exercise of rights of the ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each U.S. Pledgor shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the 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 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 (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(hg) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than the Dollar Equivalent of $5,000,000 25,000,000 individually;
(ih) any Vehicles and any assets subject to a certificate of title;
(ji) Letter-of-Credit Rights individually with a value of less than $7,500,000 (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are Supporting Obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Code; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Parent Borrower nor any U.S. Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims individually with a value of less than $5,000,00020,000,000;
(kj) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute ABL Priority Collateral, the ABL Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(lk) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the ABL Credit Agreement, 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 the applicable antiSections 9-assignment provisions 406(d), 9-407(a), 9-408(a) or 9-409 of the Code (or any successor provision or provisions) as in effect in any relevant jurisdiction, or any other applicable law (including the Bankruptcy Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions) or principles of equity), or to the extent that such security interests would result in material adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified consented to in writing to by the ABL Collateral Agent (it being understood that the Lenders shall not require the Parent Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(nl) Foreign Intellectual Property;
(om) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(pn) 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 Lien on such Capital Stock and other securities for the benefit of any the holders of securities results in Holding, the Parent Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for of such Subsidiary with the Securities and Exchange Commission SEC (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 such requirement;; and
(qo) any assets or property of HoldingsHolding, other than the Pledged Stock of the Parent Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 2 contracts
Sources: Abl Credit Agreement (Veritiv Corp), u.s. Guarantee and Collateral Agreement (Veritiv Corp)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second First Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second First Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second First Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second First Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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, the First Lien Agent or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and;
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization; and
(s) any assets or property that constitute “Excluded Assets” under and as defined in the First Lien Collateral Agreement. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 2 contracts
Sources: Second Lien Guarantee and Collateral Agreement (PharMEDium Healthcare Holdings, Inc.), Second Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Canadian Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Trade-▇▇▇▇ Licenses, Trade Secret Licenses, Industrial Design Licenses or other contracts or agreements with or issued by Persons other than HoldingsHolding, a Subsidiary of Holdings or Holding, the Borrower Parent Borrower, a Restricted Subsidiary or an Affiliate of any of the foregoing 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 and any 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 (hsubsection 8.2(e) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o8.2(n) of the ABL Credit Agreement (with respect to such Liens described in such clause (h)subsection 8.2(e) of the definition of “Permitted Liens” in the ABL Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable Agreement) to the Lenders than extent that the corresponding provision in agreements governing such Purchase Money Obligations or Capitalized Lease Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (hsubsection 8.2(d) of the definition thereof in the ABL Credit Agreement (or any corresponding provision that do not constitute Secured Bank Product Obligations of the Second Lien 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 extent that the corresponding provision in agreements governing such Hedging Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 clauses (i) through (iii) of this subclause clause (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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.2 of the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles Intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the Collateral Agent shall attach to any money, securities or other consideration received by any Canadian Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Security Collateral;
(d) each Canadian Pledgor acknowledges that certain of the Pledged Collateral of such Canadian Pledgor may now or in the future consist of ULC Shares, and that it is the intention of the ABL Collateral Agent and each Canadian Pledgor that neither the 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 Canadian Pledgor is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Canadian Pledgor, such Canadian Pledgor 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 ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Canadian Pledgor 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 Certificated Securities representing Pledged Collateral, which shall be delivered to the 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 Canadian Pledgor would if such ULC Shares were not pledged to the 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 ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable Canadian Pledgor, 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 Canadian Pledgor and further steps are taken pursuant hereto or thereto so as to register the 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 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 Canadian Pledgor, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Canadian Pledgor which is not ULC Shares. Except upon the exercise of rights of the ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Canadian Pledgor shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the 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 favour 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 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 (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) any interest in leased real property (including Fixtures fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(hg) any fee interest in owned real property (including Fixtures fixtures related thereto) if the fair market value of such fee interest is less than the Dollar Equivalent of $5,000,000 25,000,000 individually;
(ih) any Vehicles and any assets subject to certificate of titleVehicles;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(ki) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute Collateral, the ABL Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(lj) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the ABL Credit Agreement, 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 the applicable anti-assignment provisions of the CodePPSA, or any other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitionsapplicable law or principles of equity as in effect in any relevant jurisdiction), or to the extent that such security interests would result in material adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified consented to in writing to by the ABL Collateral Agent (it being understood that the Lenders shall not require the Canadian Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(nk) Foreign Intellectual Property;; and
(ol) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;.
(p) any Capital Stock and other securities of a Subsidiary 3.3.1 The Collateral shall not include the last day of the Borrower to the extent that the pledge of or grant term of any other Lien on such Capital Stock and other securities for lease or agreement therefor but upon the benefit enforcement of any holders of securities results the security interest granted hereby in the Borrower Collateral, the Canadian Grantors or any of its Restricted Subsidiaries being required them shall stand possessed of such last day in trust to file separate financial statements for assign the same to any person acquiring 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1term.
Appears in 2 contracts
Sources: Abl Credit Agreement (Veritiv Corp), Canadian Guarantee and Collateral Agreement (Veritiv Corp)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or (e) (with respect to a Lien described in Subsection 8.14(d)) of the Senior ABL Facility Agreement (or any corresponding section of any Additional ABL Credit Facility) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or and Capitalized Lease Obligations) Obligations or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement or (y) (A) is subject to any Lien in described in Subsection 8.14(q) of the Senior ABL Facility Agreement (or any corresponding provision section of the Second Lien Credit Agreement or any Additional ABL 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) (but in each case only for so long as such Liens are in place)) or (yB) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of and such other property, such Equipment or other property consists solely of (i) cash, Cash 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 such any Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) Interest Rate Agreements, Currency Agreements or Commodities Agreements or (2) 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 subclause (yB);
(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under Subsection 8.5 of the Senior ABL Facility Agreement (or any corresponding section of any Additional ABL Credit Facility) or clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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))Agreement, or (B) is subject to any Liens permitted under Subsection 8.14 of the Senior ABL Facility (or any corresponding section of any Additional ABL Credit Facility) or Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, that notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) Capital Stock that constitutes de minimis shares of a Foreign Subsidiary held by any Granting Party as a nominee or in a similar capacity;
(f) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(fg) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(gh) 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);
(hi) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(ij) any Vehicles and (x) any assets subject to certificate of titletitle (other than Vehicles) and (y) any Vehicles owned by a Grantor that are subject to an agreement with a Governmental Authority that validly prohibits the creation of a security interest or lien thereon or which would be breached or give any party the right to terminate it as a result of creation of a security interest or lien, including, without limitation, any restrictions related to any Municipal Contract Liens;
(jk) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,0003,000,000;
(kl) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings or any of its Subsidiaries as reasonably determined in writing by the Borrower and Borrower, 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;
(lm) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in material adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing consented to by the Collateral Agent (such consent not to be unreasonably withheld or delayed) (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(mn) any assets specifically requiring perfection through control agreements (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding accounts) other than Loan Party DDAs, Loan Party Concentration Accounts, the Collateral Proceeds Account) Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code Senior ABL Facility Agreement (or any corresponding section of any applicable jurisdiction orAdditional ABL Credit Facility), in the case of Pledged Stock, by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agentprovided that no Loan Party shall be required to enter into a control agreement covering any Government Receivables Deposit Accounts);
(no) Foreign Intellectual Property;
(op) any aircraft, airframes, aircraft engines, engines or helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(pq) any Excluded Vehicles;
(r) any property that would not otherwise be ABL Priority Collateral and is an Excluded Asset (as such term is defined in the Term Loan Collateral Agreement); and
(s) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any the holders of securities Additional Term Obligations incurred in the form of notes (or the holders of any notes that restructure, refund, replace or refinance the Term Loans or such Additional Term Obligations) results in the Borrower or any of its Restricted Subsidiaries Company being required to file separate financial statements for 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1. For purposes of this Subsection 3.3, the terms “Commodities Agreements”, “Currency Agreements”, “Hedging Obligations”, and “Interest Rate Agreements” shall have the meanings given to such terms in the ABL/Term Loan Intercreditor Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Emergency Medical Services CORP), Guarantee and Collateral Agreement (Emergency Medical Services CORP)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdingsthe Borrower, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (A) is subject to a Lien described in clause (f) of the definition of “Permitted Liens” in the Senior ABL Facility Agreement (or any corresponding section of any successor Working Capital Credit Agreement) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) Obligations or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement or (y) (A) is subject to any Lien described in clause (p)(ii) of the definition of “Permitted Liens” in the Senior ABL Facility Agreement (or any corresponding provision section of the Second Lien any successor Working Capital 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) (but in each case only for so long as such Liens are in place)Agreement) or (yB) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of and such other property, such Equipment or other property consists solely of (i) cash, Cash 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 such any Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) Interest Rate Agreements, Currency Agreements or Commodities Agreements or (2) 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 subclause (yB);
(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction sale/leaseback transaction permitted under Subsection 10.11 of the Senior ABL Facility Agreement (as defined in the definition or any corresponding section of “Exempt Sale and Leaseback Transaction” in the any successor Working Capital Credit Agreement) permitted under or clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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))Agreement, or (B) is subject to any Liens permitted under Subsection 10.2 of the Senior ABL Facility Agreement (or any corresponding section of any successor Working Capital Credit Agreement) or Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) sale/leaseback transaction or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, that notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) Capital Stock that constitutes de minimis shares of a Foreign Subsidiary held by any Granting Party as a nominee or in a similar capacity;
(f) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(fg) the Merger Acquisition Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Acquisition Agreement);
(gh) 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);
(hi) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 2,000,000 individually;
(ij) any Vehicles and any assets subject to certificate of title;
(jk) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,0003,000,000;
(kl) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings the Borrower or any of its Subsidiaries as reasonably determined in writing by the Borrower and Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute Term Loan Priority Collateral, the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(lm) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in material adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing consented to by the Collateral Agent (such consent not to be unreasonably withheld or delayed) (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(mn) any assets specifically requiring perfection through control agreements (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding accounts) other than the Collateral Proceeds Account) Cash Management Accounts and the Concentration Accounts (in each case only to the extent required pursuant to Subsection 6.6(a) of the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code Senior ABL Facility Agreement (or any corresponding section of any applicable jurisdiction or, in the case of Pledged Stock, by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agentsuccessor Working Capital Credit Agreement));
(no) Foreign Intellectual Property;
(op) any aircraft, airframes, aircraft engines, engines or helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(pq) any property that would not otherwise be Term Loan Priority Collateral and is Excluded Property or Excluded Real Properties (in each case, as such term is defined in the Senior ABL Facility Agreement); and
(r) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any the holders of securities Additional Obligations incurred in the form of notes (or the holders of any notes that restructure, refund, replace or refinance the Term Loans or such Additional Obligations) results in the Borrower or any of its Restricted Subsidiaries Company being required to file separate financial statements for 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Acquisition Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Nci Building Systems Inc), Credit Agreement (Nci Building Systems Inc)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, with respect to the Granting Parties, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdingsthe U.S. Borrower, a Subsidiary of Holdings the U.S. Borrower or the Borrower other U.S. Borrowers or an Affiliate 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 and or any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. 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 any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 9.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Borrower and notified in writing to the Collateral Agent) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Borrower and notified in writing to the Collateral Agent)), or (B) is subject to any Liens permitted under Subsection 8.6 9.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the U.S. Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the U.S. Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the U.S. Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to permitted Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)Letter-of-Credit Rights;
(g) any interest in leased real property (including Fixtures not constituting equipment related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individuallyproperty;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with reasonably expected to result in a value recovery of less than $5,000,00020,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings the U.S. Borrower or any of its Subsidiaries as reasonably determined in writing by the U.S. Borrower and the Administrative Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit AgreementAgreement binding on any assets on the date of the Original ABL Collateral Agreement or acquired after the date of the Original ABL Collateral Agreement at the time of such acquisition and not incurred in contemplation of such acquisition, 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 the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, the U.S. Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the U.S. Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the U.S. Borrower or any of its subsidiaries U.S. Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent[reserved];
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the U.S. Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the U.S. 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(rq) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Abl Guarantee and Collateral Agreement (Univar Solutions Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, the Borrower, a Subsidiary of Holdings or the Borrower Borrower, or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Financing Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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 Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (yb)(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction permitted under Subsection 8.5 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as defined determined by the Borrower in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreementgood faith, which determination shall be conclusive)) permitted under or clause (x) or (xviiixix) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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 Agentgood faith, which determination shall be conclusive)), or (B) is subject to any Liens permitted under Subsection 8.14 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agentgood faith, which determination shall be conclusive)) which that, in each case, relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) (x) the Merger Pisces Acquisition Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Pisces Acquisition Agreement) and (y) the Atlas Acquisition Agreement and any rights therein or arising thereunder (except any proceeds of the Atlas Acquisition Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if (A) the fair market value (as determined by the Borrower in good faith, which determination shall be conclusive) of such fee interest at the time of the acquisition of such fee interest is less than $5,000,000 15,000,000 individually, or (B) such real property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are supporting obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Borrower nor any other Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims Claims, in each case, individually with a value of less than $5,000,00015,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Topco or any of its Subsidiaries as reasonably determined in writing by the Borrower and Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute Cash Flow Priority Collateral, the Collateral Agent, which determination shall be conclusive, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the CodeUniform Commercial Code of any applicable jurisdiction, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibitionsprohibitions for so long as such prohibitions are in effect), or to the extent that such security interests would result in adverse tax consequences to HoldingsTopco or one of its Subsidiaries (or, at the election of the Borrower in connection with an initial public offering or other restructuring of the Borrower, any Parent Entity, the Borrower or any one or more of its Subsidiaries Subsidiaries) (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent good faith, which determination shall be conclusive) (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Accountaccounts), (i) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orjurisdiction, (ii) other than in the case of Pledged StockStock or Pledged Notes, to the extent not perfected by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agent, (iii) other than DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility)), and (iv) other than the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as defined in the ABL Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) prior to the Discharge of ABL Obligations, any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement);
(q) any Capital Stock and other securities of (i) a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirementrequirement and/or (ii) any Subsidiary of the Borrower that is (x) an Unrestricted Subsidiary or (y) an Excluded Subsidiary, other than a Foreign Subsidiary (which pledge of Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) of a Foreign Subsidiary shall be limited to 65% of each series of its Capital Stock);
(qr) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(rs) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Atlas Acquisition Agreement or the Pisces Acquisition Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Cash Flow Guarantee and Collateral Agreement (Nci Building Systems Inc)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document Document, other than the security interest granted in the Guarantee and Collateral Agreement, in any right, title or interest of any Granting Party Grantor under or in, and “Collateral” and “Pledged Collateral” shall not include include, the following (subject to the last sentence of this Section 3.3, collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than HoldingsParent, a Subsidiary of Holdings or the Borrower Parent or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash Equivalents or Equivalents, Temporary Cash InvestmentsInvestments or Investment Grade Securities, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (y);
(c) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property (x) has been sold or otherwise transferred in connection with a Special Purpose Financing (as defined in the Credit Agreement), or (y) constitutes the proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing (other than any payments received by any Grantor in payment for the sale and transfer of such property in such Special Purpose Financing) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 8.1(b)(ix) of the Credit Agreement or permitted by Section 8.6 of the Credit Agreement as “Permitted Liens” permitted pursuant to clause (r) of the definition of such term;
(d) 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 (A) has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision under Section 8.4 of the Second Lien 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))Agreement, or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as LEGAL_1:67880593.5 LEGAL_36377770.2 such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(de) Capital Stock (including for these purposes any investment or indebtedness deemed to be Capital Stock for United States U.S. tax purposes) which that is described in the proviso to the definition of “Pledged Stock”;
(ef) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries Parent in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its SubsidiariesParent, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(fg) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)[reserved];
(gh) 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);
(hi) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually12,500,000;
(ij) any Vehicles and any assets subject to certificate of title;
(jk) Letter-of-Letter of Credit Rights and Commercial Tort Claims commercial tort claims individually with a value of less than $5,000,0007,500,000;
(kl) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Parent 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;
(lm) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the CodePPSA, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective or enforceable under the Code PPSA notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Parent, Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower Parent or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign lawlaw (other than the laws of the United States of America and any of its states));
(mn) 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) accounts), to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction PPSA or, in the case of Pledged Stock, by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agent;
, other than (ni) Foreign Intellectual Propertyprior to the Discharge of ABL Obligations, DDAs and Blocked Accounts (as defined in the ABL Credit Agreement) (in each case only to the extent required pursuant to Subsection 4.16 of the ABL Credit Agreement), and (ii) the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and, prior to the Discharge of ABL Obligations, any Collateral Proceeds Account under and as defined in the ABL Guarantee and Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(o) Foreign Intellectual Property; LEGAL_1:67880593.5 LEGAL_36377770.2
(p) any aircraftaircrafts, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment equipment or other assets asset constituting a part thereof;
(pq) any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Guarantee and Collateral Agreement);
(r) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and or other securities for the benefit of any holders of securities results in the Borrower Parent 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 such requirement;
(qs) with respect to any assets or property Grantor’s grant of Holdingssecurity in Trademarks, other than the Pledged Stock such grant of security shall be limited to a grant by such Grantor of a security interest in (and not constitute an assignment of) all of the BorrowerGrantor’s right, title and interest in such Trademarks;
(t) Consumer Goods; and
(ru) the last day of the term of any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction lease or agreement for lease of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1rental property.
Appears in 1 contract
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document other than the security interest granted in the Canadian Guarantee and Collateral Agreement, in any right, title or interest of any Granting Party Grantor under or in, and “Collateral” and “Pledged Collateral” shall not include the following (subject to the last sentence of this Section 3.3, collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than HoldingsParent, a Subsidiary of Holdings or the Borrower Parent or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash Equivalents or Equivalents, Temporary Cash InvestmentsInvestments or Investment Grade Securities, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (y);
(c) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property (x) has been sold or otherwise transferred in connection with a Special Purpose Financing (as defined in the Credit Agreement), or (y) constitutes the proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing (other than any payments received by any Grantor in payment for the sale and transfer of such property in such Special Purpose Financing) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 8.1(b)(ix) of the Credit Agreement or permitted by Section 8.6 of the Credit Agreement as “Permitted Liens” permitted pursuant to clause (r) of the definition of such term);
(d) 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 (A) has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision under Section 8.4 of the Second Lien 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)Agreement), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)Agreement) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(de) Capital Stock (including for these purposes any investment or indebtedness deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(ef) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower Parent or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower Parent or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(fg) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)[reserved];
(gh) 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);
(hi) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually12,500,000;
(ij) any Vehicles and any assets subject to certificate of title;
(jk) Letter-of-Letter of Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,0007,500,000;
(kl) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Parent 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;
(lm) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Parent, Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower Parent or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign lawlaw (other than the laws of Canada and any of its provinces));
(mn) 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) accounts), 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 or an Additional Agent as agent for the Collateral Agent, other than (ii) prior to the Discharge of ABL Obligations, DDAs and Blocked Accounts (as defined in the ABL Credit Agreement) (in each case only to the extent required pursuant to Subsection 4.16 of the ABL Credit Agreement), and (ii) the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and, prior to the Discharge of ABL Obligations, any Collateral Proceeds Account under and as defined in the ABL Guarantee and Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(no) Foreign Intellectual Property;
(op) any aircraftaircrafts, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment equipment or other assets asset constituting a part thereof;
(pq) any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Guarantee and Collateral Agreement); and
(r) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and or other securities for the benefit of any holders of securities results in the Borrower Parent 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 3-16 316 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 such requirement;
. Notwithstanding the foregoing clauses (qa) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
through (r), prior to the Discharge of ABL Obligations, “Excluded Assets” shall not include any property or asset that is ABL Priority Collateral at any time such property or asset (i) any Goods in which a security interest is not perfected by filing a financing statement in constitutes “Collateral” under the applicable Grantor’s jurisdiction of organization. For ABL Guarantee and Collateral Agreement and (ii) for the avoidance of doubt, if any Grantor receives any payment or other amount is not an “Excluded Asset” under the Merger ABL Guarantee and Collateral Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the any Borrower or an Affiliate 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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 Parent 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 any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 Parent Borrower and notified in writing to the Collateral Agent) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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 Parent Borrower and notified in writing to the Collateral Agent)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Parent Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Acquisition Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Acquisition Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 €15,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000€15,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries U.S. Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: First Lien Guarantee and Collateral Agreement (Mauser Group B.V.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party U.S. Grantor under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than HoldingsHolding, a Subsidiary of Holdings or Holding, the Borrower Parent Borrower, a Restricted Subsidiary or an Affiliate of any of the foregoing 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 and any 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 (hsubsection 8.2(e) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o8.2(n) (with respect to such Liens described in such clause (hsubsection 8.2(d)) of the definition of “Permitted Liens” in the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 extent that the corresponding provision in agreements governing such Purchase Money Obligations or Capitalized Lease Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 subsection 8.2(d) that do not constitute Secured Bank Product Obligations of the ABL Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 extent that the corresponding provision in agreements governing such Hedging Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.2 of the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the Collateral Agent shall attach to any money, securities or other consideration received by any U.S. Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Security Collateral;
(d) each U.S. Pledgor acknowledges that certain of the Pledged Collateral of such U.S. Pledgor may now or in the future consist of ULC Shares, and that it is the intention of the ABL Collateral Agent and each U.S. Pledgor that neither the 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 U.S. Pledgor is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such U.S. Pledgor, such U.S. Pledgor 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 ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each U.S. Pledgor 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 Collateral Representative 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 U.S. Pledgor would if such ULC Shares were not pledged to the 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 ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable U.S. Pledgor, 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 U.S. Pledgor and further steps are taken pursuant hereto or thereto so as to register the 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 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 U.S. Pledgor, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any U.S. Pledgor which is not ULC Shares. Except upon the exercise of rights of the ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each U.S. Pledgor shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the 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 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 (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(hg) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than the Dollar Equivalent of $5,000,000 25,000,000 individually;
(ih) any Vehicles and any assets subject to a certificate of title;
(ji) Letter-of-Credit Rights individually with a value of less than $7,500,000 (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are Supporting Obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Code; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Parent Borrower nor any U.S. Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims individually with a value of less than $5,000,00020,000,000;
(kj) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute ABL Priority Collateral, the ABL Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(lk) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the ABL Credit Agreement, 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 the applicable antiSections 9-assignment provisions 406(d), 9-407(a), 9-408(a) or 9-409 of the Code (or any successor provision or provisions) as in effect in any relevant jurisdiction, or any other applicable law (including the Bankruptcy Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions) or principles of equity), or to the extent that such security interests would result in material adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified consented to in writing to by the ABL Collateral Agent (it being understood that the Lenders shall not require the Parent Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(nl) Foreign Intellectual Property;
(om) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(pn) 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 Lien on such Capital Stock and other securities for the benefit of any the holders of securities results in Holding, the Parent Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for of such Subsidiary with the Securities and Exchange Commission SEC (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 such requirement;; and
(qo) any assets or property of HoldingsHolding, other than the Pledged Stock of the Parent Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: u.s. Guarantee and Collateral Agreement (Veritiv Corp)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate 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 and or any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to permitted Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)Letter-of-Credit Rights;
(g) any interest in leased real property (including Fixtures not constituting equipment related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value Fair Market Value of such fee interest is less than $5,000,000 10,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with reasonably expected to result in a value recovery of less than $5,000,00020,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit AgreementAgreement binding on any assets as of the date hereof or acquired after the date hereof at the time of such acquisition and not incurred in contemplation of such acquisition, 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 the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower Holdings or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower Holdings and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower Holdings or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent[reserved];
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower Holdings to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Borrower Holdings 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(rq) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Term Loan Guarantee and Collateral Agreement (Univar Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party Grantor under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdingsthe Company, a Subsidiary of Holdings or the Borrower Company or an Affiliate of any of the foregoing 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 and any 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 permitted by Section 413 of the Indenture as a Permitted Lien pursuant to clause (h) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) term (but in each case only for so long as such Liens are in place)) or (y) is subject , except to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of extent constituting Collateral under the Senior Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Term Loan Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) leaseback transaction permitted under clause (x) or (xviii) Section 411 of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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))Indenture, or (B) is subject to any Liens permitted under Subsection 8.6 Section 413 of the Credit Agreement (or any corresponding provision Indenture and consists of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) leaseback transaction or general intangibles related thereto (but only for so long as such Liens are in place); provided thatthereto, notwithstanding except to the extent constituting Collateral under the Senior Credit Agreement or the Second Lien Term Loan Credit Agreement. Notwithstanding the foregoing, a 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 Security Collateralproperty;
(d) Capital Stock (including any Intellectual Property governed by the laws of a jurisdiction in which a security interest or similar lien of any kind is prohibited under that jurisdiction’s laws, for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in so long as the proviso to the definition laws of Pledged Stockthat jurisdiction so provide;
(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;
(f) Capital Stock issued by Canadian ▇▇▇▇▇ and any other ULC Shares. If any Grantor shall execute and deliver any agreements, documents, opinions or certificates in favor of the U.S. Collateral Agent (as such term is defined in the Senior Credit Agreement) to pledge any ULC Shares to the U.S. Collateral Agent, it shall at such time execute and deliver such agreements, documents, instruments and opinion to pledge such ULC Shares to the Note Collateral Agent for the benefit of the Secured Parties, in each case, in form and substance reasonably acceptable to the Note Collateral Agent;
(g) any forward contracts between RSC and RSC Canada entered into in connection with the loan made by Canadian ▇▇▇▇▇ to RSC Canada;
(h) any Money, cash, checks, other negotiable instrumentsinstrument, funds and other evidence of payment held in any Deposit Account of the Borrower Company or any of its Subsidiaries (i) for the benefit of customers of any Grantor or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Borrower 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;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;; or
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1Asset.
Appears in 1 contract
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than HoldingsCCMCG, a Subsidiary of Holdings or the Borrower CCMGC or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)permitted by subsection 8.3(h) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Special Purpose Financing or a Sale and Leaseback Transaction (as defined in the definition permitted under subsection 8.12 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.3(n) of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding . Notwithstanding the foregoing, a the security interest of the 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 Security Collateralproperty;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to specifically excluded from the definition of Pledged StockStock by virtue of the proviso contained in the parenthetical to such definition;
(e) Vehicle Rental Concession Rights;
(f) for the avoidance of doubt, any Deposit Account and any Money, cash, checks, other negotiable instrument, funds and other evidence of payment therein held by any ‘qualified intermediary’ in connection with the HERC LKE Program or Rental Car LKE Program;
(g) any Money, cash, checks, other negotiable instrumentsinstrument, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries (i) for the benefit of customers of Hertz Claim Management Corporation or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);; or
(h) any fee interest property that would otherwise be included in owned real the Security Collateral (and such property (including Fixtures related theretoshall not be deemed to constitute a part of the Security Collateral) if the fair market value of such fee interest property is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate other Liens permitted by subsection 8.3(t)(i) of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “"Excluded Assets”"):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)permitted by subsection 7.2(h) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition permitted under subsection 7.10 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 7.2(n) of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding . Notwithstanding the foregoing, a the security interest of the 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 Security Collateralproperty;
(d) any Intellectual Property governed by the laws of a jurisdiction in which a security interest or similar lien of any kind is prohibited under that jurisdiction's laws, for so long as the laws of that jurisdiction so provide;
(e) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to specifically excluded from the definition of Pledged Stock;Stock by virtue of the proviso contained in the parenthetical to such definition; or
(ef) Capital Stock issued by Canadian ▇▇▇▇▇; or
(g) Any forward contracts between RSC and RSC Canada entered into in connection with the loan made by Canadian ▇▇▇▇▇ to RSC Canada; or
(h) any Money, cash, checks, other negotiable instrumentsinstrument, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its
(i) for the benefit of customers of any Granting Party or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (RSC Holdings Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Trade-m▇▇▇ Licenses, Trade Secret Licenses, Industrial Design Licenses or other contracts or agreements with or issued by Persons other than Holdingsa Canadian Borrower, a Subsidiary of Holdings or the Borrower a Canadian Borrower, or an Affiliate 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 PPSA and any 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 personal property that would otherwise be included in the Security Collateral (and such Equipment or other personal property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other personal property (x) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Credit Agreement or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Financing Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Cash Flow Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Credit Agreement or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Cash Flow Credit Agreement) permitted by Subsection 8.6 of the Cash Flow Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Cash Flow Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other personal property, such other personal property consists solely of (i) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets personal property relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Cash Flow Credit Agreement), and/or (iii) any other assets personal property consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Cash Flow Credit Agreement) or (2) any other agreements, instruments or documents related to any such Hedging Obligations (as defined in the Cash Flow Credit Agreement) or to any of the assets personal property referred to in any of subclauses (i) through (iii) of this subclause (yb)(y);
(c) any personal property (and/or related rights and/or assets) that (A) would otherwise be included in the Security Collateral (and such personal property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such personal property has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Cash Flow Credit Agreement) permitted under Subsection 8.5 of the Credit Agreement or clause (x) or (xviiixix) of the definition of “Asset Disposition” in the Cash Flow Credit Agreement (or any corresponding provision of the Second Lien 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))Agreement, or (B) is subject to any Liens permitted under Subsection 8.6 8.14 of the Credit Agreement (or any corresponding provision Subsection 8.6 of the Second Lien Cash Flow Credit Agreement or any Additional Credit Facility; provided that such provision that, in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which each case, relate to personal property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Cash Flow Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 personal property as and to the extent such consideration would otherwise constitute Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checkscheques, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the any Canadian Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the any Canadian Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) (x) the Merger Pisces Acquisition Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Pisces Acquisition Agreement) and (y) the Atlas Acquisition Agreement and any rights therein or arising thereunder (except any proceeds of the Atlas Acquisition Agreement);
(g) any interest in leased real property (including Fixtures fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(h) any fee interest in owned real property (including Fixtures fixtures related thereto) if (A) the fair market value (as determined by the Borrower Representative, for and on behalf of the Canadian Borrowers, in good faith, which determination shall be conclusive) of such fee interest at the time of the acquisition of such fee interest is less than $5,000,000 15,000,000 individually, or (B) if situated in the United States, such real property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets personal property to the extent the granting or perfecting of a security interest in such assets personal property would result in costs or other consequences to Holdings Topco or any of its Subsidiaries as reasonably determined in writing by the Borrower Representative, for and on behalf of the Canadian Borrowers, the Administrative Agent and the Administrative Collateral Agent, which determination shall be conclusive, that are excessive in view of the benefits that would be obtained by the Secured Parties;Parties (it being understood and agreed that personal property located in the Province of Québec shall be deemed under this clause (j) to not constitute a part of the Security Collateral to the extent the value of such personal property does not exceed $500,000 in the aggregate).
(lk) those assets any personal property over which the granting of security interests in such assets personal property would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the CodePPSA of any applicable jurisdiction, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code PPSA of any applicable jurisdiction notwithstanding such prohibitionsprohibitions for so long as such prohibitions are in effect), or to the extent that such security interests would result in adverse tax consequences to HoldingsTopco or one of its Subsidiaries (or, at the election of the Borrower Representative, for and on behalf of the Canadian Borrowers, in connection with an initial public offering or other restructuring of the Parent Borrower, any Parent Entity, the Parent Borrower or any one or more of its Subsidiaries Subsidiaries) (as reasonably determined in writing by the Borrower Representative, for and notified on behalf of the Canadian Borrowers, in writing to the Collateral Agent good faith, which determination shall be conclusive) (it being understood that the Canadian Facility Lenders shall not require the any Canadian Borrower or any of its subsidiaries Subsidiaries to enter into any security agreements or pledge agreements governed by foreign lawthe law of a jurisdiction other than Canada or the United States or a subdivision thereof);
(ml) any assets personal property specifically requiring perfection through control (including cashsecurities accounts), cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Account(i) to the extent the security interest in such asset personal property is not automatically perfected by filings under the Uniform Commercial Code PPSA of any applicable jurisdiction or, and (ii) other than in the case of Pledged StockStock or Pledged Notes, to the extent not perfected by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agent;
(nm) Foreign Intellectual Property;
(on) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets personal property constituting a part thereof;
(po) any Capital Stock and other securities of (i) a Subsidiary of the Parent Borrower to the extent that the pledge of or grant of any other 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 such requirementrequirement and/or (ii) any Subsidiary of the Parent Borrower that is (x) an Unrestricted Subsidiary, (y) an Excluded Subsidiary, other than a Foreign Subsidiary (which pledge of Capital Stock of a Foreign Subsidiary (other than a Canadian Subsidiary) shall be limited to 65% of each series of its Capital Stock), or (z) a Domestic Subsidiary;
(p) 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; and
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
“consumer goods” (r) any Goods in which a security interest is not perfected by filing a financing statement as defined in the applicable PPSA) of any Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Atlas Acquisition Agreement or the Pisces Acquisition Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Abl Canadian Guarantee and Collateral Agreement (Nci Building Systems Inc)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “"Excluded Assets”"):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)permitted by subsection 8.3(h) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition permitted under subsection 8.11 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.3(n) of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding . Notwithstanding the foregoing, a the security interest of the 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 Security Collateralproperty;
(d) any Intellectual Property governed by the laws of a jurisdiction in which a security interest or similar lien of any kind is prohibited under that jurisdiction's laws, for so long as the laws of that jurisdiction so provide;
(e) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to specifically excluded from the definition of Pledged StockStock by virtue of the proviso contained in the parenthetical to such definition;
(ef) Capital Stock issued by Canadian ▇▇▇▇▇ and any other ULC Shares. If the Grantor acquires any ULC Shares, it shall promptly notify the U.S. Collateral Agent. Upon the request of the U.S. Collateral Agent, such Grantor shall execute and deliver all such agreements and deliver all such other documents, opinions and certificates (including without limitation share certificates evidencing such ULC Shares) as the U.S. Collateral Agent may reasonably require to receive a perfected, first ranking priority security interest in the ULC Shares, in each case, in form and substance reasonably acceptable to the U.S. Collateral Agent;
(g) Any forward contracts between RSC and RSC Canada entered into in connection with the loan made by Canadian ▇▇▇▇▇ to RSC Canada; or
(h) any Money, cash, checks, other negotiable instrumentsinstrument, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries (i) for the benefit of customers of any Granting Party or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: u.s. Guarantee and Collateral Agreement (RSC Holdings Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdingsthe Borrower, a Subsidiary of Holdings or the Borrower Borrower, or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Financing Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in placegood faith, which determination shall be conclusive)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such any assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (yb)(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction permitted under Subsection 8.5 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as defined determined by the Borrower in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreementgood faith, which determination shall be conclusive)) permitted under or clause (x) or (xviiixix) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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 Agentgood faith, which determination shall be conclusive)), or (B) is subject to any Liens permitted under Subsection 8.14 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agentgood faith, which determination shall be conclusive)) which that relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)[reserved];
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if (A) the fair market value Fair Market Value of such fee interest at the time of the acquisition of such fee interest is less than $5,000,000 individually, or (B) such real property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,00010,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings the Borrower or any of its Subsidiaries as reasonably determined in writing by the Borrower and Borrower, the Administrative AgentAgent and, to the extent such assets would otherwise constitute Term Loan Priority Collateral, the Collateral Agent in good faith (which determination shall be conclusive), that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, the Borrower or any one or more of its Subsidiaries (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent good faith, which determination shall be conclusive) (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Accountaccounts), (i) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orjurisdiction, (ii) other than in the case of Pledged Stock, or Pledged Notes, to the extent not perfected by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agent, (iii) other than DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility)), and (iv) other than the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as defined in the ABL Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock stock, or any Equipment or other assets constituting a part thereof;
(p) prior to the Discharge of ABL Obligations, any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement);
(q) any Capital Stock and other securities of (i) a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirementrequirement and/or (ii) any Subsidiary of the Borrower that is an Unrestricted Subsidiary or an Excluded Subsidiary, other than a Foreign Subsidiary (which pledge of the Capital Stock of a Foreign Subsidiary shall be limited to 65% of each series of its Capital Stock);
(qr) any assets or property of Holdings, other than the Pledged Stock of the Borrower[reserved]; and
(rs) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Term Loan Guarantee and Collateral Agreement (Nci Building Systems Inc)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdingsthe Parent, a Subsidiary of Holdings or the Borrower Parent or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Credit Agreement (or any corresponding provision of any Additional Credit Facility (but in each case only for so long as such Liens are in place)) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Financing Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Term Loan Credit Agreement (as in effect on the date hereof) (or any corresponding provision of any Additional Credit Facility) or (y) (A) is subject to any Lien (other than Liens securing the Obligations, the Term Loan Obligations or any Additional Term Obligations) described in Subsection 8.14(q) of the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (yB) is subject to any Lien (other than Liens securing the Obligations, the Term Loan Obligations or any Additional Term Obligations ) in respect of Hedging Obligations (as defined in the Term Loan Credit AgreementAgreement (as in effect on the date hereof)) permitted by Subsection 8.6 of the Term Loan Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Term Loan Credit Agreement (as in effect on the date hereof) (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Term Loan Credit AgreementAgreement (as in effect on the date hereof)), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Term Loan Credit Agreement) or (2) any other agreements, instruments or documents related to evidencing or governing any such Hedging Obligations (as defined in the Term Loan Credit AgreementAgreement (as in effect on the date hereof)) or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (yb)(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition permitted under Subsection 8.5 of “Exempt Sale and Leaseback Transaction” in the Credit AgreementAgreement (or any corresponding provision of any Additional Credit Facility) permitted under or clause (x) or (xviiixix) of the definition of “Asset Disposition” in the Term Loan Credit Agreement (as in effect on the date hereof) (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 8.14 of the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement or any Additional Credit Facility; provided that such ) or Subsection 8.6 of the Term Loan Credit Agreement (as in effect on the date hereof) (or any corresponding provision in of any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision Facility) that, in the Credit Agreement in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which each case, relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower Parent or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower Parent or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(hg) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually);
(ih) any Vehicles and any assets subject to certificate of title;
(ji) Letter-of-Credit Rights and Commercial Tort Claims Claims, in each case, individually with a value of less than $5,000,00010,000,000;
(kj) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings the Parent or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent, the Administrative AgentAgent and, to the extent such assets would otherwise constitute ABL Priority Collateral, the Collateral Agent in good faith (which determination shall be conclusive), that are excessive in view of the benefits that would be obtained by the Secured Parties;
(lk) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower the Parent or any one or more of its Subsidiaries (as reasonably determined in writing by the Borrower and notified Parent in writing to the Collateral Agent good faith, which determination shall be conclusive) (it being understood that the Lenders shall not require the Borrower Parent or any of its subsidiaries Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(ml) any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Accountaccounts), (i) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orjurisdiction, (ii) other than in the case of Pledged Stock, or Pledged Notes, to the extent not perfected by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agent, (iii) other than DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Credit Agreement (or any corresponding provision of any Additional ABL Credit Facility)), and (iv) other than the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as defined in the Term Loan Collateral Agreement (to the extent required pursuant to the Term Loan Collateral Agreement);
(nm) Foreign Intellectual Property;
(on) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock stock, or any Equipment or other assets constituting a part thereof;
(o) prior to the Discharge of Term Loan Obligations, any property that would otherwise constitute Term Loan Priority Collateral but is an Excluded Asset (as such term is defined in the Term Loan Collateral Agreement); and
(p) any Capital Stock and other securities of a Subsidiary of the Borrower Parent to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Borrower Parent 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(rq) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Abl Guarantee and Collateral Agreement (Nci Building Systems Inc)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Parent Borrower or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Senior ABL Facility Agreement (or any corresponding provision of any Additional ABL Credit Facility) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Senior ABL Facility Agreement (or any corresponding provision of any Additional ABL Credit Facility) or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (yB);
(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under Subsection 8.5 of the Senior ABL Facility Agreement (or any corresponding provision of any Additional Credit Facility) or clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.14 of the Senior ABL Facility Agreement (or any corresponding provision of any Additional Credit Facility) or Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Investment Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Investment Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights individually with a value of less than $5,000,000 (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are Supporting Obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Code; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Parent Borrower nor any Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute Term Loan Priority Collateral, the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitionsprohibitions for so long as such prohibitions are in effect), or to the extent that such security interests would result in material adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Parent Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 Accountaccounts), other than (i) to the extent the any assets in which a security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orCode, in the case of (ii) Pledged Stock, by being held by (iii) DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Senior ABL Facility Agreement (or any corresponding provision of any Additional ABL Credit Facility)), and (iv) the Collateral Agent or an Additional Agent Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as agent for defined in the ABL Collateral AgentAgreement (to the extent required pursuant to the ABL Collateral Agreement);
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement);
(q) 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 Lien on such Capital Stock and other securities for the benefit of any the holders of securities results in any Parent Entity, the Parent Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for 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 such requirement;
(qr) any assets or property of Holdings, other than the Pledged Stock of the Parent Borrower; and
(rs) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Investment Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Term Loan Guarantee and Collateral Agreement (SiteOne Landscape Supply, Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party U.S. Grantor under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than HoldingsHolding, a Subsidiary of Holdings or Holding, the Borrower Parent Borrower, a Restricted Subsidiary or an Affiliate of any of the foregoing 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 and any 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 (hsubsection 8.2(e) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o8.2(n) (with respect to such Liens described in such clause (h)subsection 8.2(e) of the definition ABL Credit Agreement) of “Permitted Liens” in the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 extent that the corresponding provision in agreements governing such Purchase Money Obligations or Capitalized Lease Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (hsubsection 8.2(d) of the definition thereof in the ABL Credit Agreement (or any corresponding provision that do not constitute Secured Bank Product Obligations of the Second Lien 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 extent that the corresponding provision in agreements governing such Hedging Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.2 of the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the Collateral Agent shall attach to any money, securities or other consideration received by any U.S. Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Security Collateral;
(d) Capital Stock (including for these purposes each U.S. Pledgor acknowledges that certain of the Pledged Collateral of such U.S. Pledgor may now or in the future consist of ULC Shares, and that it is the intention of the ABL Collateral Agent and each U.S. Pledgor that neither the ABL Collateral Agent nor any investment deemed other Secured Party should under any circumstances prior to realization be held to be Capital Stock a “member” or “shareholder,” as applicable, of a ULC for United States tax purposes) which is described in the proviso purposes of any ULC Laws. Therefore, notwithstanding any provisions to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held contrary contained in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit this Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 (ABL Credit Agreement or any other governmental authority) pursuant to either Rule 3-10 or 3-16 Loan Document, where a U.S. Pledgor is the registered and beneficial owner of Regulation S-X under ULC Shares which are Pledged Collateral of such U.S. Pledgor, such U.S. Pledgor will remain the Securities Actsole registered and beneficial owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the ABL Collateral Agent, any other Secured Party, or any other lawPerson on the books and records of the applicable ULC. Accordingly, rule each U.S. Pledgor shall be entitled to receive and retain for its own account any dividend or regulation as other distribution, if any, in effect from time to timerespect of such ULC Shares (except for any dividend or distribution comprised of share certificates representing Pledged Collateral, but only which shall be delivered to the Collateral Representative 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 necessary as such U.S. Pledgor would if such ULC Shares were not pledged to not be subject to such requirement;
(q) the ABL Collateral Agent pursuant hereto. Nothing in this Agreement, the ABL Credit Agreement or any assets other Loan Document is intended to, and nothing in this Agreement, the ABL Credit Agreement or property of Holdingsany other Loan Document shall, constitute the ABL Collateral Agent, any other Secured Party, or any other Person other than the Pledged Stock applicable U.S. Pledgor, 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 U.S. Pledgor and further steps are taken pursuant hereto or thereto so as to register the ABL Collateral Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of the Borrower; and
(r) ULC Shares. To the extent any Goods in provision hereof would have the effect of constituting the 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 a security interest are Pledged Collateral of any U.S. Pledgor, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any U.S. Pledgor which is not perfected by filing ULC Shares. Except upon the exercise of rights of the ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each U.S. Pledgor shall not cause or permit, or enable an Issuer that is a financing statement ULC to cause or permit, the 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 applicable Grantor’s jurisdiction share register of organization. For the avoidance such Issuer; (c) be held out as shareholders or members of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.Issuer;
Appears in 1 contract
Sources: Abl Credit Agreement (Veritiv Corp)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)permitted by subsection 8.3(h) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition permitted under subsection 8.11 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.3(n) of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding . Notwithstanding the foregoing, a the security interest of the 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 Security Collateralproperty;
(d) any Intellectual Property governed by the laws of a jurisdiction in which a security interest or similar lien of any kind is prohibited under that jurisdiction’s laws, for so long as the laws of that jurisdiction so provide;
(e) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to specifically excluded from the definition of Pledged StockStock by virtue of the proviso contained in the parenthetical to such definition;
(ef) Capital Stock issued by Canadian ▇▇▇▇▇ and any other ULC Shares. If the Grantor acquires any ULC Shares, it shall promptly notify the U.S. Collateral Agent. Upon the request of the U.S. Collateral Agent, such Grantor shall execute and deliver all such agreements and deliver all such other documents, opinions and certificates (including without limitation share certificates evidencing such ULC Shares) as the U.S. Collateral Agent may reasonably require to receive a perfected, first ranking priority security interest in the ULC Shares, in each case, in form and substance reasonably acceptable to the U.S. Collateral Agent; provided that such security interest shall be subject to the limitations applicable to pledges described in clause (x) of the proviso to subsection 3.1;
(g) Any forward contracts between RSC and RSC Canada entered into in connection with the loan made by Canadian ▇▇▇▇▇ to RSC Canada; or
(h) any Money, cash, checks, other negotiable instrumentsinstrument, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries (i) for the benefit of customers of any Granting Party or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (RSC Equipment Rental, Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)permitted by subsection 8.3(h) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition permitted under subsection 8.11 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.3(n) of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding . Notwithstanding the foregoing, a the security interest of the 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 Security Collateralproperty;
(d) any Intellectual Property governed by the laws of a jurisdiction in which a security interest or similar lien of any kind is prohibited under that jurisdiction’s laws, for so long as the laws of that jurisdiction so provide;
(e) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to specifically excluded from the definition of Pledged StockStock by virtue of the proviso contained in the parenthetical to such definition;
(ef) Capital Stock issued by Canadian F▇▇▇▇ and any other ULC Shares. If the Grantor acquires any ULC Shares, it shall promptly notify the U.S. Collateral Agent. Upon the request of the U.S. Collateral Agent, such Grantor shall execute and deliver all such agreements and deliver all such other documents, opinions and certificates (including without limitation share certificates evidencing such ULC Shares) as the U.S. Collateral Agent may reasonably require to receive a perfected, first ranking priority security interest in the ULC Shares, in each case, in form and substance reasonably acceptable to the U.S. Collateral Agent;
(g) Any forward contracts between RSC and RSC Canada entered into in connection with the loan made by Canadian F▇▇▇▇ to RSC Canada; or
(h) any Money, cash, checks, other negotiable instrumentsinstrument, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries (i) for the benefit of customers of any Granting Party or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Credit Agreement (RSC Holdings Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, the Parent Borrower, a Subsidiary of Holdings or the Borrower Parent Borrower, or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Credit Agreement (or any corresponding provision of any Additional Credit Facility) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Financing Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Cash Flow Credit Agreement (or any corresponding provision of the Second Lien 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 Representative in writing to the Collateral Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Credit Agreement (or any corresponding provision of any Additional Credit Facility) or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Cash Flow Credit Agreement) permitted by Subsection 8.6 of the Cash Flow Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Cash Flow Credit Agreement (or any corresponding provision of the Second Lien 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 Representative in writing to the Collateral Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Cash Flow Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Cash Flow Credit Agreement) or (2) any other agreements, instruments or documents related to any such Hedging Obligations (as defined in the Cash Flow Credit Agreement) or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (yb)(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Cash Flow Credit Agreement) permitted under Subsection 8.5 of the Credit Agreement (or any corresponding provision of any Additional Credit Facility) or clause (x) or (xviiixix) of the definition of “Asset Disposition” in the Cash Flow Credit Agreement (or any corresponding provision of the Second Lien 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 Cash Flow Credit Agreement (as reasonably determined in writing by the Borrower and notified Representative in writing to the Collateral Agentgood faith, which determination shall be conclusive)), or (B) is subject to any Liens permitted under Subsection 8.6 8.14 of the Credit Agreement (or any corresponding provision of any Additional Credit Facility) or Subsection 8.6 of the Second Lien Cash Flow Credit Agreement (or any corresponding provision of 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 Cash Flow Credit Agreement in any material respect (as reasonably determined in writing by the Borrower and notified Representative in writing to the Collateral Agentgood faith, which determination shall be conclusive)) which that, in each case, relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Cash Flow Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) (x) the Merger Pisces Acquisition Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Pisces Acquisition Agreement) and (y) the Atlas Acquisition Agreement and any rights therein or arising thereunder (except any proceeds of the Atlas Acquisition Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if (A) the fair market value (as determined by the Borrower Representative in good faith, which determination shall be conclusive) of such fee interest at the time of the acquisition of such fee interest is less than $5,000,000 15,000,000 individually, or (B) such real property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are supporting obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Parent Borrower nor any other Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims Claims, in each case, individually with a value of less than $5,000,00015,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Topco or any of its Subsidiaries as reasonably determined in writing by the Borrower and Representative, the Administrative Agent and, to the extent such assets would otherwise constitute ABL Priority Collateral, the Collateral Agent, which determination shall be conclusive, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the CodeUniform Commercial Code of any applicable jurisdiction, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibitionsprohibitions for so long as such prohibitions are in effect), or to the extent that such security interests would result in adverse tax consequences to HoldingsTopco or one of its Subsidiaries (or, at the election of the Borrower Representative in connection with an initial public offering or other restructuring of the Parent Borrower, any Parent Entity, the Parent Borrower or any one or more of its Subsidiaries Subsidiaries) (as reasonably determined in writing by the Borrower and notified Representative in writing to the Collateral Agent good faith, which determination shall be conclusive) (it being understood that the Lenders shall not require the Parent Borrower or any of its subsidiaries Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Accountaccounts), (i) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orjurisdiction, (ii) other than in the case of Pledged StockStock or Pledged Notes, to the extent not perfected by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agent, (iii) other than DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Credit Agreement (or any corresponding provision of any Additional ABL Credit Facility)), and (iv) other than the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as defined in the Cash Flow Collateral Agreement (to the extent required pursuant to the Cash Flow Collateral Agreement);
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) prior to the Discharge of Cash Flow Obligations and the Discharge of Additional Cash Flow Obligations, any property that would otherwise constitute Cash Flow Priority Collateral but is an Excluded Asset (as such term is defined in the Cash Flow Collateral Agreement);
(q) any Capital Stock and other securities of (i) a Subsidiary of the Parent Borrower to the extent that the pledge of or grant of any other 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 such requirementrequirement and/or (ii) any Subsidiary of the Parent Borrower that is (x) an Unrestricted Subsidiary or (y) an Excluded Subsidiary, other than a Foreign Subsidiary (which pledge of Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) of a Foreign Subsidiary shall be limited to 65% of each series of its Capital Stock);
(qr) any assets or property of Holdings, other than the Pledged Stock of the Parent Borrower; and
(rs) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Atlas Acquisition Agreement or the Pisces Acquisition Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Abl u.s. Guarantee and Collateral Agreement (Nci Building Systems Inc)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Canadian Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Trade-m▇▇▇ Licenses, Trade Secret Licenses, Industrial Design Licenses or other contracts or agreements with or issued by Persons other than HoldingsHolding, a Subsidiary of Holdings or Holding, the Borrower Parent Borrower, a Restricted Subsidiary or an Affiliate of any of the foregoing 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 and any 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 (hsubsection 8.2(e) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o8.2(n) of the ABL Credit Agreement (with respect to such Liens described in such clause (h)subsection 8.2(e) of the definition of “Permitted Liens” in the ABL Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable Agreement) to the Lenders than extent that the corresponding provision in agreements governing such Purchase Money Obligations or Capitalized Lease Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (hsubsection 8.2(d) of the definition thereof in the ABL Credit Agreement (or any corresponding provision that do not constitute Secured Bank Product Obligations of the Second Lien 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 extent that the corresponding provision in agreements governing such Hedging Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 clauses (i) through (iii) of this subclause clause (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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.2 of the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles Intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the Collateral Agent shall attach to any money, securities or other consideration received by any Canadian Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Security Collateral;
(d) each Canadian Pledgor acknowledges that certain of the Pledged Collateral of such Canadian Pledgor may now or in the future consist of ULC Shares, and that it is the intention of the ABL Collateral Agent and each Canadian Pledgor that neither the 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 Canadian Pledgor is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Canadian Pledgor, such Canadian Pledgor 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 ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Canadian Pledgor 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 Certificated Securities representing Pledged Collateral, which shall be delivered to the 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 Canadian Pledgor would if such ULC Shares were not pledged to the 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 ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable Canadian Pledgor, 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 Canadian Pledgor and further steps are taken pursuant hereto or thereto so as to register the 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 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 Canadian Pledgor, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Canadian Pledgor which is not ULC Shares. Except upon the exercise of rights of the ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Canadian Pledgor shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the 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 favour 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 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 (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) any interest in leased real property (including Fixtures fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(hg) any fee interest in owned real property (including Fixtures fixtures related thereto) if the fair market value of such fee interest is less than the Dollar Equivalent of $5,000,000 25,000,000 individually;
(ih) any Vehicles and any assets subject to certificate of titleVehicles;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(ki) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute Collateral, the ABL Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(lj) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the ABL Credit Agreement, 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 the applicable anti-assignment provisions of the CodePPSA, or any other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitionsapplicable law or principles of equity as in effect in any relevant jurisdiction), or to the extent that such security interests would result in material adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified consented to in writing to by the ABL Collateral Agent (it being understood that the Lenders shall not require the Canadian Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(nk) Foreign Intellectual Property;; and
(ol) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;.
(p) any Capital Stock and other securities of a Subsidiary 3.3.1 The Collateral shall not include the last day of the Borrower to the extent that the pledge of or grant term of any other Lien on such Capital Stock and other securities for lease or agreement therefor but upon the benefit enforcement of any holders of securities results the security interest granted hereby in the Borrower Collateral, the Canadian Grantors or any of its Restricted Subsidiaries being required them shall stand possessed of such last day in trust to file separate financial statements for assign the same to any person acquiring such Subsidiary with the Securities and Exchange Commission (or term.
3.3.2 The term “Goods” when used in this Agreement shall not include Consumer Goods of 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Canadian Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Abl Credit Agreement (Veritiv Corp)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Parent Borrower or an Affiliate of any of the foregoing (collectivelyforegoing,(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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or (e) (with respect to a Lien described in Subsection 8.14(d)) of the Credit Agreement or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or and Capitalized Lease Obligations) Obligations or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien Term Loan Credit Agreement or (y) (A) is subject to any Additional Credit Facility; provided that such provision Lien in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision described in Subsection 8.14(q) of 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 (yB) is subject to any Lien in respect of Hedging Obligations (as defined in the Term Loan Credit Agreement) permitted by Subsection 8.6 of the Term Loan Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of and such other property, such Equipment or other property consists solely of (i) cash, Cash 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 such any Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) Interest Rate Agreements, Currency Agreements or Commodities Agreements or (2) 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 subclause (yB);
(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition permitted under Subsection 8.5 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under Agreement or clause (x) or (xviii) of the definition of “Asset Disposition” in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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))Agreement, or (B) is subject to any Liens permitted under Subsection 8.6 8.14 of the Credit Agreement (or any corresponding provision Subsection 8.6 of the Second Lien Term Loan 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) Capital Stock that constitutes de minimis shares of a Foreign Subsidiary held by any Granting Party as a nominee or in a similar capacity;
(f) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(fg) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(gh) 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);
(hi) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(ix) any Vehicles and any assets subject to certificate of title;
title (jother than Vehicles) Letter-of-Credit Rights and Commercial Tort Claims individually (y) any Vehicles owned by a Grantor that are subject to an agreement with a value of less than $5,000,000;
(k) assets to Governmental Authority that validly prohibits the extent the granting or perfecting creation of a security interest in such assets would result in costs or other consequences to Holdings lien thereon 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 which would be obtained by breached or give any party the Secured Parties;
(l) those assets over which the granting right to terminate it as a result of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, applicable law or regulation or the organizational or joint venture documents creation of any non-wholly owned Subsidiary (including permitted liens, leases and licenses) (in each case, after giving effect to the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubtor lien, if including, without limitation, any Grantor receives restrictions related to any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.Municipal Contract Liens;
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Emergency Medical Services CORP)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (subject to the last sentence of this Section 3.3, collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second ABL Credit Agreement, the First Lien Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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 any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second ABL Credit Agreement, the First Lien Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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)), and, in the case of such other property, such other property consists solely of (i) cash, Cash Equivalents or Equivalents, Temporary Cash InvestmentsInvestments or Investment Grade Securities, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (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 (x) has been sold or otherwise transferred in connection with a Special Purpose Financing (as defined in the Credit Agreement), or (y) constitutes the proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing (other than any payments received by any Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 8.1(b)(ix) of the Credit Agreement or permitted by Section 8.6 of the Credit Agreement as “Permitted Liens” permitted pursuant to clause (r) of the definition of such term (or any corresponding provisions of the ABL Credit Agreement, the First Lien Credit Agreement or any Additional Credit Facility; provided that such provisions (other than any as in effect on the date hereof) are 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)).
(d) 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 (A) has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement or under Section 8.4 of the Credit Agreement (or any corresponding provision of the Second ABL Credit Agreement, First Lien Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second ABL Credit Facility, First Lien Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(de) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(ef) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(fg) the Merger Investment Agreement (as defined in the ABL Credit Agreement) and the Redemption Agreement, and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)thereunder;
(gh) 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);
(hi) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than (i) with respect to any such owned real property subject to a Mortgage on the date hereof, for so long as such Mortgage is in effect, $5,000,000 5.0 million individually and (ii) with respect to any other owned real property, $7.5 million individually;
(ij) any Vehicles and any assets subject to certificate of title;
(jk) Letter-of-Letter of Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,0007.5 million;
(kl) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(lm) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(mn) 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) accounts), 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 or an Additional Agent as agent for the Collateral Agent, other than (ii) prior to the Discharge of ABL Obligations, DDAs and Blocked Accounts (as defined in the ABL Credit Agreement) (in each case only to the extent required pursuant to Subsection 4.16 of the ABL Credit Agreement), and (ii) the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and, prior to the Discharge of ABL Obligations, any Collateral Proceeds Account under and as defined in the ABL Guarantee and Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(no) Foreign Intellectual Property;
(op) any aircraftaircrafts, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment equipment or other assets asset constituting a part thereof;
(pq) any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Guarantee and Collateral Agreement);
(r) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and or 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 such requirement;requirement and
(qs) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement that constitute “Excluded Assets” under and as defined in the applicable Grantor’s jurisdiction of organizationFirst Lien Guarantee and Collateral Agreement. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Investment Agreement or the Redemption Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth above in Subsection 3.1. Notwithstanding the foregoing clauses (a) through (s), prior to the Discharge of ABL Obligations, “Excluded Assets” shall not include any property or asset that is ABL Priority Collateral at any time such property or asset (i) constitutes “Collateral” or “Pledged Collateral” under the ABL Guarantee and Collateral Agreement and (ii) for the avoidance of doubt, is not an “Excluded Asset” under the ABL Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Second Lien Guarantee and Collateral Agreement (Atkore International Group Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Parent Borrower or an Affiliate of any of the foregoing (collectivelyforegoing,(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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or (e) (with respect to a Lien described in Subsection 8.14(d)) of the Credit Agreement or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or and Capitalized Lease Obligations) Obligations or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien Term Loan Credit Agreement or (y) (A) is subject to any Additional Credit Facility; provided that such provision Lien in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision described in Subsection 8.14(q) of 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 (yB) is subject to any Lien in respect of Hedging Obligations (as defined in the Term Loan Credit Agreement) permitted by Subsection 8.6 of the Term Loan Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of and such other property, such Equipment or other property consists solely of (i) cash, Cash 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 such any Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) Interest Rate Agreements, Currency Agreements or Commodities Agreements or (2) 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 subclause (yB);
(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition permitted under Subsection 8.5 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under Agreement or clause (x) or (xviii) of the definition of “Asset Disposition” in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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))Agreement, or (B) is subject to any Liens permitted under Subsection 8.6 8.14 of the Credit Agreement (or any corresponding provision Subsection 8.6 of the Second Lien Term Loan 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) Capital Stock that constitutes de minimis shares of a Foreign Subsidiary held by any Granting Party as a nominee or in a similar capacity;
(f) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(fg) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(gh) 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);
(hi) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Parent Borrower or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Credit Agreement or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Credit Agreement or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Term Loan Credit Agreement) permitted by Subsection 8.6 of the Term Loan Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Term Loan Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Term Loan Credit Agreement) or (2) any other agreements, instruments or documents related to any such Hedging Obligations (as defined in the Term Loan Credit Agreement) or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (yB);
(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under Subsection 8.5 of the Credit Agreement (or any corresponding provision of any Additional Credit Facility) or clause (x) or (xviii) of the definition of “Asset Disposition” in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 8.14 of the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement or any Additional Credit Facility; provided that such ) or Subsection 8.6 of the Term Loan Credit Agreement (or any corresponding provision in of any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)Facility) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Investment Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Investment Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights individually with a value of less than $5,000,000 (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are Supporting Obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Code; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Parent Borrower nor any Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute ABL Priority Collateral, the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitionsprohibitions for so long as such prohibitions are in effect), or to the extent that such security interests would result in material adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Parent Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 Accountaccounts), other than (i) to the extent the any assets in which a security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orCode, in the case of (ii) Pledged Stock, by being held by (iii) DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Credit Agreement), and (iv) the Collateral Agent or an Additional Agent Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as agent for defined in the Term Loan Collateral AgentAgreement (to the extent required pursuant to the Term Loan Collateral Agreement);
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any property that would otherwise constitute Term Loan Priority Collateral but is an Excluded Asset (as such term is defined in the Term Loan Collateral Agreement);
(q) 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 Lien on such Capital Stock and other securities for the benefit of any the holders of securities results in any Parent Entity, the Parent Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for 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 such requirement;
(qs) any assets or property of Holdings, other than the Pledged Stock of the Parent Borrower; and
(rt) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Investment Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Abl Guarantee and Collateral Agreement (SiteOne Landscape Supply, Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Parent Borrower or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Credit Agreement or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Credit Agreement or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Term Loan Credit Agreement) permitted by Subsection 8.6 of the Term Loan Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Term Loan Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Term Loan Credit Agreement) or (2) any other agreements, instruments or documents related to any such Hedging Obligations (as defined in the Term Loan Credit Agreement) or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (yB);
(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under Subsection 8.5 of the Credit Agreement (or any corresponding provision of any Additional Credit Facility) or clause (x) or (xviii) of the definition of “Asset Disposition” in the Term Loan Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 8.14 of the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement or any Additional Credit Facility; provided that such ) or Subsection 8.6 of the Term Loan Credit Agreement (or any corresponding provision in of any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)Facility) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Investment Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Investment Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights individually with a value of less than $5,000,000 (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are Supporting Obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Code; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Parent Borrower nor any Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute ABL Priority Collateral, the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitionsprohibitions for so long as such prohibitions are in effect), or to the extent that such security interests would result in material adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Parent Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 Accountaccounts), other than (i) to the extent the any assets in which a security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orCode, in the case of (ii) Pledged Stock, by being held by (iii) DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Credit Agreement), and (iv) the Collateral Agent or an Additional Agent Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as agent for defined in the Term Loan Collateral AgentAgreement (to the extent required pursuant to the Term Loan Collateral Agreement);
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any property that would otherwise constitute Term Loan Priority Collateral but is an Excluded Asset (as such term is defined in the Term Loan Collateral Agreement);
(q) 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 Lien on such Capital Stock and other securities for the benefit of any the holders of securities results in any Parent Entity, the Parent Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (subject to the last sentence of this Section 3.3, collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the ABL Credit Agreement, the Second Lien Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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 any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the ABL Credit Agreement, the Second Lien Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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)), and, in the case of such other property, such other property consists solely of (i) cash, Cash Equivalents or Equivalents, Temporary Cash InvestmentsInvestments or Investment Grade Securities, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (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 (x) has been sold or otherwise transferred in connection with a Special Purpose Financing (as defined in the Credit Agreement), or (y) constitutes the proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing (other than any payments received by any Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 8.1(b)(ix) of the Credit Agreement or permitted by Section 8.6 of the Credit Agreement as “Permitted Liens” permitted pursuant to clause (r) of the definition of such term (or any corresponding provisions of the ABL Credit Agreement, the Second Lien Credit Agreement or any Additional Credit Facility; provided that such provisions (other than any as in effect on the date hereof) are 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)).
(d) 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 (A) has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement or under Section 8.4 of the Credit Agreement (or any corresponding provision of the ABL Credit Agreement, Second Lien Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the ABL Credit Facility, Second Lien Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(de) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(ef) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(fg) the Merger Investment Agreement (as defined in the ABL Credit Agreement) and the Redemption Agreement, and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)thereunder;
(gh) 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);
(hi) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than (i) with respect to any such owned real property subject to a Mortgage on the date hereof, for so long as such Mortgage is in effect, $5,000,000 5.0 million individually and (ii) with respect to any other owned real property, $7.5 million individually;
(ij) any Vehicles and any assets subject to certificate of title;
(jk) Letter-of-Letter of Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,0007.5 million;
(kl) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(lm) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(mn) 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) accounts), 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 or an Additional Agent as agent for the Collateral Agent, other than (ii) prior to the Discharge of ABL Obligations, DDAs and Blocked Accounts (as defined in the ABL Credit Agreement) (in each case only to the extent required pursuant to Subsection 4.16 of the ABL Credit Agreement), and (ii) the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and, prior to the Discharge of ABL Obligations, any Collateral Proceeds Account under and as defined in the ABL Guarantee and Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(no) Foreign Intellectual Property;
(op) any aircraftaircrafts, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment equipment or other assets asset constituting a part thereof;
(pq) any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Guarantee and Collateral Agreement); and
(r) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and or 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Investment Agreement or the Redemption Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth above in Subsection 3.1. Notwithstanding the foregoing clauses (a) through (r), prior to the Discharge of ABL Obligations, “Excluded Assets” shall not include any property or asset that is ABL Priority Collateral at any time such property or asset (i) constitutes “Collateral” or “Pledged Collateral” under the ABL Guarantee and Collateral Agreement and (ii) for the avoidance of doubt, is not an “Excluded Asset” under the ABL Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: First Lien Guarantee and Collateral Agreement (Atkore International Group Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdingsthe U.S. Parent Borrower, a Subsidiary of Holdings the U.S. Parent Borrower or the Borrower other U.S. Borrowers or an Affiliate 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 and or any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Parent 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 any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 9.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Parent Borrower and notified in writing to the Collateral Agent) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Parent Borrower and notified in writing to the Collateral Agent)), or (B) is subject to any Liens permitted under Subsection 8.6 9.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the U.S. Parent Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the U.S. Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the U.S. Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to permitted Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)Letter-of-Credit Rights;
(g) any interest in leased real property (including Fixtures not constituting equipment related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individuallyproperty;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with reasonably expected to result in a value recovery of less than $5,000,00020,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings the U.S. Parent Borrower or any of its Subsidiaries as reasonably determined in writing by the U.S. Parent Borrower and the Administrative Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit AgreementAgreement binding on any assets on the date of the Original ABL Collateral Agreement or acquired after the date of the Original ABL Collateral Agreement at the time of such acquisition and not incurred in contemplation of such acquisition, 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 the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, the U.S. Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the U.S. Parent Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the U.S. Parent Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent[reserved];
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the U.S. Parent Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the U.S. 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(rq) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Abl Guarantee and Collateral Agreement (Univar Solutions Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)permitted by subsection 7.2(h) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition permitted under subsection 7.10 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 7.2(n) of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding . Notwithstanding the foregoing, a the security interest of the 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 Security Collateralproperty;
(d) any Intellectual Property governed by the laws of a jurisdiction in which a security interest or similar lien of any kind is prohibited under that jurisdiction’s laws, for so long as the laws of that jurisdiction so provide;
(e) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to specifically excluded from the definition of Pledged Stock;Stock by virtue of the proviso contained in the parenthetical to such definition; or
(ef) Capital Stock issued by Canadian F▇▇▇▇; or
(g) Any forward contracts between RSC and RSC Canada entered into in connection with the loan made by Canadian F▇▇▇▇ to RSC Canada; or
(h) any Money, cash, checks, other negotiable instrumentsinstrument, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries (i) for the benefit of customers of any Granting Party or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit or with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (RSC Holdings Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than HoldingsCCMCG, a Subsidiary of Holdings or the Borrower CCMGC or an Affiliate of any of the foregoing 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)permitted by subsection 8.3(h) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Special Purpose Financing or a Sale and Leaseback Transaction (as defined in the definition permitted under subsection 8.12 of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.3(n) of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding . Notwithstanding the foregoing, a the security interest of the 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 Security Collateralproperty;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to specifically excluded from the definition of Pledged StockStock by virtue of the proviso contained in the parenthetical to such definition;
(e) Vehicle Rental Concession Rights;
(f) for the avoidance of doubt, any Deposit Account and any Money, cash, checks, other negotiable instrument, funds and other evidence of payment therein held by any ‘qualified intermediary’ in connection with the HERC LKE Program or Rental Car LKE Program;
(g) any Money, cash, checks, other negotiable instrumentsinstrument, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries (i) for the benefit of customers of Hertz Claim Management Corporation or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);; or
(h) any fee interest property that would otherwise be included in owned real the Security Collateral (and such property (including Fixtures related theretoshall not be deemed to constitute a part of the Security Collateral) if the fair market value of such fee interest property is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate other Liens permitted by subsection 8.3(t)(i) of title;
(j) Letter-of-the Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets Agreement to the extent that, prior to or simultaneously with such property being excluded from, and/or ceasing to constitute a part of, the granting Security Collateral, one or perfecting of a security interest in such assets would result in costs or other consequences to Holdings or any of its Subsidiaries as reasonably determined in writing by the Borrower and the Administrative Agent, that are excessive in view more of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted U.S. Borrowers shall have repaid amounts outstanding under the Credit AgreementAgreement such that (x) the sum of (A) the aggregate U.S. Facility Revolving Credit Lender Exposure plus (B) the aggregate unpaid balance of all other Extensions of Credit to, applicable law or regulation or for the organizational or joint venture documents account of any non-wholly owned Subsidiary the U.S. Borrowers plus (including permitted liens, leases and licensesC) the amount by which the aggregate unpaid Extensions of Credit made to the Canadian Borrowers exceeds the Canadian Borrowing Base (as set forth in each case, a Borrowing Base Certificate delivered on the date of such prepayment (with appropriate adjustments to the form thereof) calculating the Canadian Borrowing Base after giving effect to the applicable anti-assignment provisions exclusion of such property from the CodeSecurity Collateral, other than proceeds and receivables thereof to does not exceed (y) the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries U.S. Borrowing Base (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1a Borrowing Base Certificate delivered on the date of such prepayment (with appropriate adjustments to the form thereof) calculating the U.S. Borrowing Base after giving effect to the exclusion of such property from the Security Collateral).
Appears in 1 contract
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Canadian Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Trade-▇▇▇▇ Licenses, Trade Secret Licenses, Industrial Design Licenses or other contracts or agreements with or issued by Persons other than HoldingsHolding, a Subsidiary of Holdings or Holding, the Borrower Parent Borrower, a Restricted Subsidiary or an Affiliate of any of the foregoing 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 and any 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 8.2 (he) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o8.2(n) of the ABL Credit Agreement (with respect to such Liens described in such clause (h)subsection 8.2(d) of the definition of “Permitted Liens” in the ABL Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable Agreement) to the Lenders than extent that the corresponding provision in agreements governing such Purchase Money Obligations or Capitalized Lease Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 subsection 8.2(d) that do not constitute Secured Bank Product Obligations of the ABL Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 extent that the corresponding provision in agreements governing such Hedging Obligations prohibit the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing granting of a security interest to the ABL Collateral Agent) Agent hereunder (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 clauses (i) through (iii) of this subclause clause (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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 subsection 8.2 of the ABL Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles Intangibles related thereto (but only for so long as such Liens are in place); , provided that, notwithstanding the foregoing, a security interest of the Collateral Agent shall attach to any money, securities or other consideration received by any Canadian Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Security Collateral;
(d) each Canadian Pledgor acknowledges that certain of the Pledged Collateral of such Canadian Pledgor may now or in the future consist of ULC Shares, and that it is the intention of the ABL Collateral Agent and each Canadian Pledgor that neither the 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 Canadian Pledgor is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Canadian Pledgor, such Canadian Pledgor 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 ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Canadian Pledgor 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 Certificated Securities representing Pledged Collateral, which shall be delivered to the 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 Canadian Pledgor would if such ULC Shares were not pledged to the 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 ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable Canadian Pledgor, 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 Canadian Pledgor and further steps are taken pursuant hereto or thereto so as to register the 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 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 Canadian Pledgor, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Canadian Pledgor which is not ULC Shares. Except upon the exercise of rights of the ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Canadian Pledgor shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the 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 favour 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 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 (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) any interest in leased real property (including Fixtures fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(hg) any fee interest in owned real property (including Fixtures fixtures related thereto) if the fair market value of such fee interest is less than the Dollar Equivalent of $5,000,000 25,000,000 individually;
(ih) any Vehicles and any assets subject to certificate of titleVehicles;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(ki) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and Parent Borrower, the Administrative Agent and, to the extent such assets would otherwise constitute Collateral, the ABL Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(lj) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the ABL Credit Agreement, 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 the applicable anti-assignment provisions of the CodePPSA, or any other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitionsapplicable law or principles of equity as in effect in any relevant jurisdiction), or to the extent that such security interests would result in material adverse tax consequences to Holdings, the Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Parent Borrower and notified consented to in writing to by the ABL Collateral Agent (it being understood that the Lenders shall not require the Canadian Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(nk) Foreign Intellectual Property;; and
(ol) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;.
(p) any Capital Stock and other securities of a Subsidiary 3.3.1 The Collateral shall not include the last day of the Borrower to the extent that the pledge of or grant term of any other Lien on such Capital Stock and other securities for lease or agreement therefor but upon the benefit enforcement of any holders of securities results the security interest granted hereby in the Borrower Collateral, the Canadian Grantors or any of its Restricted Subsidiaries being required them shall stand possessed of such last day in trust to file separate financial statements for assign the same to any person acquiring 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1term.
Appears in 1 contract
Sources: Canadian Guarantee and Collateral Agreement (Veritiv Corp)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the U.S. Borrower or an Affiliate 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 and or any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. 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 any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Borrower and notified in writing to the Collateral Agent) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Borrower and notified in writing to the Collateral Agent)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the U.S. Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the U.S. Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the U.S. Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to permitted Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)Letter-of-Credit Rights;
(g) any interest in leased real property (including Fixtures not constituting equipment related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value Fair Market Value of such fee interest is less than $5,000,000 10,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with reasonably expected to result in a value recovery of less than $5,000,00020,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings or any of its Subsidiaries as reasonably determined in writing by the U.S. Borrower and the Administrative Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit AgreementAgreement binding on any assets as of the date hereof or acquired after the date hereof at the time of such acquisition and not incurred in contemplation of such acquisition, applicable law or regulation or the organizational or joint venture documents of any nonnon wholly ownednon-wholly owned Wholly Owned Subsidiary (including permitted liens, leases and licenses) (in each case, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower Holdings or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower Holdings and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower Holdings or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent[reserved];
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower Holdings to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Borrower Holdings 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(rq) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Term Loan Guarantee and Collateral Agreement (Univar Solutions Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the any Borrower or an Affiliate 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 and any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.clause
Appears in 1 contract
Sources: Second Lien Guarantee and Collateral Agreement (Mauser Group B.V.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (subject to the last sentence of this Section 3.3, collectively, the “Excluded Assets”):
(a1) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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);
(b2) 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien ABL Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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 any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien ABL Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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)), and, in the case of such other property, such other property consists solely of (i) cash, Cash Equivalents or Equivalents, Temporary Cash InvestmentsInvestments or Investment Grade Securities, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (y);
(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 (x) has been sold or otherwise transferred in connection with a Special Purpose Financing (as defined in the Credit Agreement), or (y) constitutes the proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing (other than any payments received by any Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing) or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 8.1(b)(ix) of the Credit Agreement or permitted by Section 8.6 of the Credit Agreement as “Permitted Liens” permitted pursuant to clause (r) of the definition of such term (or any corresponding provisions of the ABL Credit Agreement or any Additional Credit Facility; provided that such provisions (other than any as in effect on the date hereof) are 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)).
(4) 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 (A) has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement or under Section 8.4 of the Credit Agreement (or any corresponding provision of the Second Lien ABL Credit Agreement or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) 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)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien ABL Credit Agreement Facility or any Additional Credit Facility; provided that such provision (other than any as in any Additional Credit Facility effect on the date hereof) is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d5) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States U.S. tax purposes) which that is described in the proviso to the definition of “Pledged Stock”;
(e6) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries Grantor in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its SubsidiariesGrantor, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f7) the Merger Investment Agreement (as defined in the Existing Credit Agreement (as defined in the ABL Credit Agreement)) and the Redemption Agreement, and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)thereunder;
(g) 8) 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);
(h9) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than (i) with respect to any such owned real property subject to a Mortgage on the date hereof, for so long as such Mortgage is in effect, $5,000,000 5.0 million individually and (ii) with respect to any other owned real property, $7.5 million individually;
(i10) any Vehicles and any assets subject to certificate of title;
(j11) Letter-of-Credit Rights letter of credit rights and Commercial Tort Claims individually with a value of less than $5,000,0007.5 million;
(k12) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l13) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the CodePPSA, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective or enforceable under the Code PPSA notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m14) 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) accounts), to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction PPSA or, in the case of Pledged Stock, by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agent, other than (ii) prior to the Discharge of ABL Obligations, DDAs and Blocked Accounts (as defined in the ABL Credit Agreement) (in each case only to the extent required pursuant to Subsection 4.16 of the ABL Credit Agreement), and (ii) the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and, prior to the Discharge of ABL Obligations, any Collateral Proceeds Account under and as defined in the ABL Guarantee and Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(n15) Foreign Intellectual Property;
(o16) any aircraftaircrafts, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment equipment or other assets asset constituting a part thereof;
(p17) any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Guarantee and Collateral Agreement);
(18) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and or 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 such requirement;
(q19) with respect to any assets or property Grantor’s grant of Holdingssecurity in Trademarks, other than the Pledged Stock such grant of the Borrower; and
(r) any Goods in which security shall be limited to a grant by such Grantor of a security interest is in (and not perfected by filing a financing statement in constitute an assignment of) all of the applicable Grantor’s jurisdiction of organization. For the avoidance of doubtright, if any Grantor receives any payment or other amount under the Merger Agreement, title and interest in such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.Trademarks; and
Appears in 1 contract
Sources: Canadian Term Loan Guarantee and Collateral Agreement (Atkore International Group Inc.)
Certain Limited 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, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, the Company, a Subsidiary of Holdings or the Borrower Company, or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Holders than the corresponding provision in the Senior ABL Agreement (as determined by the Company in good faith, which determination shall be conclusive)) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Financing Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement Indenture (or any corresponding provision of the Second Lien Credit Senior Cash Flow Agreement, the Senior Term Loan Agreement or any other Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders Holders than the corresponding provision in the Credit Agreement Indenture (as reasonably determined in writing by the Borrower and notified Company in writing to the Collateral Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Holders than the corresponding provision in the Senior ABL Agreement (as determined by the Company in good faith, which determination shall be conclusive)) or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit AgreementIndenture) permitted by Subsection 8.6 Section 413 of the Credit Agreement Indenture as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement Indenture (or any corresponding provision of the Second Lien Credit Senior Cash Flow Agreement, the Senior Term Loan Agreement or any other Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders Holders than the corresponding provision in the Credit Agreement Indenture (as reasonably determined in writing by the Borrower and notified Company in writing to the Collateral Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (yb)(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction permitted under Subsection 8.5 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Holders than the corresponding provision in the Senior ABL Agreement (as defined determined by the Company in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreementgood faith, which determination shall be conclusive)) permitted under or clause (x) or (xviiixvi) of the definition of “Asset Disposition” in the Credit Agreement Indenture (or any corresponding provision of the Second Lien Credit Senior Cash Flow Agreement, the Senior Term Loan Agreement or any other Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders Holders than the corresponding provision in the Credit Agreement Indenture (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agentgood faith, which determination shall be conclusive)), or (B) is subject to any Liens permitted under Subsection 8.6 8.14 of the Credit Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Second Lien Credit Holders than the corresponding provision in the Senior ABL Agreement (as determined by the Company in good faith, which determination shall be conclusive)) or Section 413 of the Indenture (or any corresponding provision of the Senior Cash Flow Agreement, the Senior Term Loan Agreement or any other Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders Holders than the corresponding provision in the Credit Agreement Indenture in any material respect (as reasonably determined in writing by the Borrower and notified Company in writing to the Collateral Agentgood faith, which determination shall be conclusive)) which that, in each case, relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower Company or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower 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;
(f) (x) the Merger Pisces Acquisition Agreement (as defined in the Senior Cash Flow Agreement) and any rights therein or arising thereunder (except any proceeds of the Merger Pisces Acquisition Agreement) and (y) the Atlas Acquisition Agreement (as defined in the Senior Cash Flow Agreement) and any rights therein or arising thereunder (except any proceeds of the Atlas Acquisition Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if (A) the fair market value (as determined by the Company in good faith, which determination shall be conclusive) of such fee interest at the time of the acquisition of such fee interest is less than $5,000,000 15,000,000 individually, or (B) such real property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are supporting obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction; provided that, notwithstanding any other provision of this Agreement or any other Note Document, neither the Company nor any other Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims Claims, in each case, individually with a value of less than $5,000,00015,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Topco or any of its Subsidiaries as reasonably determined in writing by the Borrower Company and the Administrative Senior ABL Agent (to the extent such assets would constitute ABL Priority Collateral) or the Senior Cash Flow Agent (to the extent such assets would constitute Cash Flow Priority Collateral), which determination shall be conclusive, and notified in writing to the Note Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit AgreementIndenture, 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 the applicable anti-assignment provisions of the CodeUniform Commercial Code of any applicable jurisdiction, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibitionsprohibitions for so long as such prohibitions are in effect), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower Topco or any one or more of its Subsidiaries (or, at the election of the Company in connection with an initial public offering or other restructuring of the Company, any Parent, the Company or any of its Subsidiaries) (as reasonably determined in writing by the Borrower and notified Company in writing to the Collateral Agent good faith, which determination shall be conclusive) (it being understood that the Lenders Holders shall not require the Borrower Company or any of its subsidiaries Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Accountaccounts), (i) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orjurisdiction, (ii) other than in the case of Pledged StockStock or Pledged Notes, to the extent not perfected by being held by the Note Collateral Agent or an Additional Agent as agent for the Note Collateral Agent, (iii) other than DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility)), and (iv) other than the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as defined in the ABL Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) prior to the Discharge of ABL Obligations, any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement);
(q) any Capital Stock and other securities of (i) a Subsidiary of the Borrower Company to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Borrower Company 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 such requirementrequirement and/or (ii) any Subsidiary of the Company that is (x) an Unrestricted Subsidiary or (y) an Excluded Subsidiary, other than a Foreign Subsidiary (which pledge of Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) of a Foreign Subsidiary shall be limited to 65% of each series of its Capital Stock);
(qr) any assets or property of Holdings, other than the Pledged Stock of the Borrower; andCompany;
(rs) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization; and
(t) prior to the discharge of any other Cash Flow Collateral Obligations, any property that is not part of the collateral securing, or required to be securing, such other Cash Flow Collateral Obligations; provided that, prior to the discharge of any other Cash Flow Collateral Obligations, Excluded Assets shall not include any property which secures (or purports to secure) such Cash Flow Collateral Obligations. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Atlas Acquisition Agreement, the Pisces Acquisition Agreement or the Camelot Acquisition Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Notes Collateral Agreement (Cornerstone Building Brands, Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, the Borrower, a Subsidiary of Holdings or the Borrower Borrower, or an Affiliate 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 and any 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) (A) is subject to a Lien described in Subsection 8.14(d) or 8.14(e) (with respect to a Lien described in Subsection 8.14(d)) of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or (B) is subject to a Lien described in clause (h) (with respect to Purchase Money Obligations or Capitalized Financing Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement Senior Cash Flow Agreement, the Senior Secured Notes Indenture or any other 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 Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)) or (y) (A) is subject to any Lien described in Subsection 8.14(q) of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or (B) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement Senior Cash Flow Agreement, the Senior Secured Notes Indenture or any other 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 Agentgood faith, which determination shall be conclusive) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 subclause (yb)(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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction permitted under Subsection 8.5 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as defined determined by the Borrower in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreementgood faith, which determination shall be conclusive)) permitted under or clause (x) or (xviiixvi) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement Senior Cash Flow Agreement, the Senior Secured Notes Indenture or any other 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 Agentgood faith, which determination shall be conclusive)), or (B) is subject to any Liens permitted under Subsection 8.14 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility; provided that such provision in any Additional ABL Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Senior ABL Agreement (as determined by the Borrower in good faith, which determination shall be conclusive)) or Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement Senior Cash Flow Agreement, the Senior Secured Notes Indenture or any other 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agentgood faith, which determination shall be conclusive)) which that, in each case, relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) (x) the Merger Pisces Acquisition Agreement (as defined in the Senior Cash Flow Agreement) and any rights therein or arising thereunder (except any proceeds of the Merger Pisces Acquisition Agreement) and (y) the Atlas Acquisition Agreement (as defined in the Senior Cash Flow Agreement) and any rights therein or arising thereunder (except any proceeds of the Atlas Acquisition Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if (A) the fair market value (as determined by the Borrower in good faith, which determination shall be conclusive) of such fee interest at the time of the acquisition of such fee interest is less than $5,000,000 15,000,000 individually, or (B) such real property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights (other than Letter-of-Credit Rights (i) to the extent such Letter-of-Credit Rights are supporting obligations in respect of Collateral and (ii) in which a security interest is automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Borrower nor any other Grantor will be required to confer perfection by control over any such Letter-of-Credit Rights) and Commercial Tort Claims Claims, in each case, individually with a value of less than $5,000,00015,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings Topco or any of its Subsidiaries as reasonably determined in writing by the Borrower and the Administrative Senior ABL Agent (to the extent such assets would constitute ABL Priority Collateral) or the Senior Cash Flow Agent (to the extent such assets would constitute Cash Flow Priority Collateral), which determination shall be conclusive, and notified in writing to the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the CodeUniform Commercial Code of any applicable jurisdiction, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibitionsprohibitions for so long as such prohibitions are in effect), or to the extent that such security interests would result in adverse tax consequences to HoldingsTopco or one of its Subsidiaries (or, at the election of the Borrower in connection with an initial public offering or other restructuring of the Borrower, any Parent Entity, the Borrower or any one or more of its Subsidiaries Subsidiaries) (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent good faith, which determination shall be conclusive) (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Accountaccounts), (i) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction orjurisdiction, (ii) other than in the case of Pledged StockStock or Pledged Notes, to the extent not perfected by being held by the Collateral Agent or an Additional Agent as agent for the Collateral Agent, (iii) other than DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent required pursuant to Subsection 4.16 of the Senior ABL Agreement (or any corresponding provision of any Additional ABL Credit Facility)), and (iv) other than the Collateral Proceeds Account (to the extent required pursuant to this Agreement), and any Collateral Proceeds Account under and as defined in the ABL Collateral Agreement (to the extent required pursuant to the ABL Collateral Agreement);
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) prior to the Discharge of ABL Obligations, any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement);
(q) any Capital Stock and other securities of (i) a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirementrequirement and/or (ii) any Subsidiary of the Borrower that is (x) an Unrestricted Subsidiary or (y) an Excluded Subsidiary, other than a Foreign Subsidiary (which pledge of Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) of a Foreign Subsidiary shall be limited to 65% of each series of its Capital Stock);
(qr) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and;
(rs) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization; and
(t) prior to the discharge of any other Cash Flow Collateral Obligations, any property that is not part of the collateral securing, or required to be securing, such other Cash Flow Collateral Obligations; provided that, prior to the discharge of any other Cash Flow Collateral Obligations, Excluded Assets shall not include any property which secures (or purports to secure) such Cash Flow Collateral Obligations. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Atlas Acquisition Agreement, the Pisces Acquisition Agreement or the Camelot Acquisition Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
Appears in 1 contract
Sources: Term Loan Guarantee and Collateral Agreement (Cornerstone Building Brands, Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document hereto in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following in (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or the Borrower or an Affiliate of any of the foregoing 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 and any 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 (x) clause (h) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement or (y) subsection 7.3(h) or any corresponding provision 7.3(o) (with respect to a Lien described in subsection 7.3(h)) of the Second Lien Credit Term Loan 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) (but in each case only for so long as such Liens are in place)) or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with (x) a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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)), or (B) is subject to any Liens permitted under Subsection 8.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) which relate to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement);
(g) 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);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $5,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings 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;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, 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 the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent;
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(r) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.Leaseback
Appears in 1 contract
Sources: u.s. Guarantee and Collateral Agreement (New Sally Holdings, Inc.)
Certain Limited Exceptions. No security interest is or will be granted pursuant to this Agreement or any other Security Document in any right, title or interest of any Granting Party under or in, and “Collateral” and “Pledged Collateral” shall not include the following (collectively, the “Excluded Assets”):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles, Goods, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdingsthe U.S. Parent Borrower, a Subsidiary of Holdings the U.S. Parent Borrower or the Borrower other U.S. Borrowers or an Affiliate 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 and or any 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) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such clause (h)) of the definition of “Permitted Liens” in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Parent 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 any Lien in respect of Hedging Obligations (as defined in the Credit Agreement) permitted by Subsection 8.6 9.6 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of the definition thereof in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Parent Borrower and notified in writing to the Collateral Agent) (but in each case only for so long as such Liens are in place)), and, in the case of such other property, such other property consists solely of (i) cash, Cash 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 such Hedging Obligations (as defined in the Credit Agreement)Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) 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 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 has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) permitted under clause (x) or (xviii) of the definition of “Asset Disposition” in the Credit Agreement (or any corresponding provision of the Second Lien 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 U.S. Parent Borrower and notified in writing to the Collateral Agent)), or (B) is subject to any Liens permitted under Subsection 8.6 9.6 of the Credit Agreement (or any corresponding provision of the Second Lien 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 in any material respect (as reasonably determined in writing by the U.S. Parent Borrower and notified in writing to the Collateral Agent)) which relate relates to property subject to any such Sale and Leaseback Transaction (as defined in the definition of “Exempt Sale and Leaseback Transaction” in the Credit Agreement) or general intangibles related thereto (but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the 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 Security Collateral;
(d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock;
(e) any Money, cash, checks, other negotiable instruments, funds and other evidence of payment held in any Deposit Account of the U.S. Parent Borrower or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the U.S. Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to permitted Contractual Obligations;
(f) the Merger Agreement and any rights therein or arising thereunder (except any proceeds of the Merger Agreement)Letter-of-Credit Rights;
(g) any interest in leased real property (including Fixtures not constituting equipment related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters);
(h) any fee interest in owned real property (including Fixtures related thereto) if the fair market value Fair Market Value of such fee interest is less than $5,000,000 10,000,000 individually;
(i) any Vehicles and any assets subject to certificate of title;
(j) Letter-of-Credit Rights and Commercial Tort Claims individually with reasonably expected to result in a value recovery of less than $5,000,00020,000,000;
(k) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holdings the U.S. Parent Borrower or any of its Subsidiaries as reasonably determined in writing by the U.S. Parent Borrower and the Administrative Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(l) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit AgreementAgreement binding on any assets as of the date hereof or acquired after the date hereof at the time of such acquisition and not incurred in contemplation of such acquisition, 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 the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Holdings, the U.S. Parent Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the U.S. Parent Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the U.S. Parent Borrower or any of its subsidiaries to enter into any security agreements or pledge agreements governed by foreign law);
(m) 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 or an Additional Agent as agent for the Collateral Agent[reserved];
(n) Foreign Intellectual Property;
(o) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof;
(p) any Capital Stock and other securities of a Subsidiary of the U.S. Parent Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the U.S. 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 such requirement;
(q) any assets or property of Holdings, other than the Pledged Stock of the Borrower; and
(rq) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Merger Agreement, such payment or other amount shall constitute Collateral when and if actually received by such Grantor, to the extent set forth in Subsection 3.1.
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