Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 3 contracts
Samples: Pledge and Security Agreement (NewPage Energy Services LLC), Pledge and Security Agreement (NewPage Holding CORP), Pledge and Security Agreement (NewPage Energy Services LLC)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights contract or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (i) the abandonmentany law, invalidation rule or unenforceability of any rightregulation applicable to such Grantor, title or interest of any Grantor therein or (ii) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract, property rights contract or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however however, that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement; (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 6566% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign CorporationCorporation or (c) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law.
Appears in 2 contracts
Samples: Second Lien Pledge and Security Agreement, Second Lien Pledge and Security Agreement (RadNet, Inc.)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any Intellectual Property, lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 2 contracts
Samples: First Lien Pledge and Security Agreement (Day International Group Inc), Second Lien Pledge and Security Agreement (Day International Group Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 2(a) hereof attach to (ai) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i1) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii2) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-4069406, 9-4079407, 9-408 9408 or 9-409 9409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i1) or (2) including, without limitation, any proceeds of such lease, license, contract, property rights or agreement; or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation “controlled foreign corporation” (as defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation controlled foreign corporation without material adverse tax consequencesconsequences to Grantor, the Collateral shall include, and the security interest granted by each such Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporationcontrolled foreign corporation.
Appears in 2 contracts
Samples: Security Agreement (Viking Systems Inc), Security Agreement (St Cloud Capital Partners Lp)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing grant of a security interest would no longer cause such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 2 contracts
Samples: Pledge and Security Agreement (J Crew Group Inc), Pledge and Security Agreement (J Crew Group Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 2(a) hereof attach to (ai) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i1) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii2) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-4069406, 9-4079407, 9-408 9408 or 9-409 9409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i1) or (2) including, without limitation, any proceeds of such lease, license, contract, property rights or agreement; or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation “controlled foreign corporation” (as defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation controlled foreign corporation without material adverse tax consequencesconsequences to a Grantor, the Collateral shall include, and the security interest granted by each such Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporationcontrolled foreign corporation.
Appears in 2 contracts
Samples: Pledge and Security Agreement (St Cloud Capital Partners Lp), Pledge and Security Agreement (Prolong International Corp)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (ai) any lease, license, contract, Intellectual Property, property rights contract or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (ix) the abandonmentany law, invalidation rule or unenforceability of any rightregulation applicable to such Grantor, title or interest of any Grantor therein or (iiy) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract, property rights contract or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (ix) or (iiy) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement; (bii) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; (iii) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law or (iv) any Deposit Account or Securities Account of a Grantor to the extent exclusively used for payroll, taxes, employee benefits or other similar fiduciary purposes.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Grifols Germany GmbH), Credit and Guaranty Agreement (Grifols Germany GmbH)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be is rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequencesresulting in repatriation of earnings, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Bell Powersports, Inc.), Pledge and Security Agreement (American Achievement Corp)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) to any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided provided, that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Xo Communications Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights contract or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (i) the abandonmentany law, invalidation rule or unenforceability of any rightregulation applicable to such Grantor, title or interest of any Grantor therein or (ii) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract, property rights right or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement; (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to voteCorporation; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; (c) any applications for trademarks or service marks filed in the United States Patent and Trademark Office (the “PTO”) pursuant to 15 U.S.C. §1051 Section 1(b) unless and until evidence of use of the xxxx in interstate commerce is submitted to the PTO pursuant to 15 U.S.C. §1051 Section 1(c) or Section 1(d); (d) Excluded Equity Interests; (e) Securitization Assets and any assets or property subject to a Permitted Lien securing Non-Recourse Indebtedness, Permitted Funding Indebtedness, Permitted Securitization Indebtedness and Indebtedness under Credit Enhancement Agreements; (f) any Custodial Accounts; (g) any REO Assets; and (h) any equity interest issued by a Securitization Entity that cannot be pledged as a result of restrictions in its or its parent’s Organizational Documents or documents governing or related to its or its subsidiaries’ Indebtedness; provided that, irrespective of the foregoing, the following assets shall constitute “Collateral”: (1) Unencumbered Servicing Advances, (2) Specified Deferred Servicing Fees and (3) Specified MSRs.
Appears in 1 contract
Samples: Pledge and Security Agreement (Ocwen Financial Corp)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately upon the execution hereof to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above); or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation Subsidiary in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation Subsidiary entitled to vote; provided provided, that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation Subsidiary without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign CorporationSubsidiary.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to any of the following (the “Excluded Property”): (a) any lease, license, contract, Intellectual Property, property rights right or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder thereunder, if and for so long as to the grant of such extent that a security interest shall is (i) prohibited by or in violation of any law, rule or regulation applicable to such Grantor, or (ii) will constitute or result in (i) the abandonmenta breach, invalidation termination or unenforceability of default under or requires any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, consent not obtained under any such lease, license, contract, property rights right or agreement (other than to the extent that any such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest in the Collateral pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach to any such lease, license, contract, property right or agreement) immediately at such time as the condition causing any such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights right or agreement that does not result in any of subject to the consequences prohibitions specified in subclauses (i) or (ii) aboveof this clause (a); provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract, property right or agreement; (b) any real property or fixtures located outside of the United States and any leasehold interests in real property; (c) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code of 1986, as amended from time to time, to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; (d) any other property or assets in which a Lien cannot be perfected by (i) the filing of a financing statement under the UCC of the relevant jurisdiction or (ii) a filing at the U.S. Patent and Trademark Office or the U.S. Copyright Offices, so long as the aggregate Fair Market Value of all such property and assets does not at any one time exceed $20.0 million; (e) any deposit account for taxes, payroll, employee benefits or similar items and any other account or financial asset in which such security interest would be unlawful or in violation of any Plan or employee benefit agreement; (f) accounts receivable and related assets transferred or purported to be transferred in a Permitted Securitization Program; (g) assets, with respect to which any applicable law prohibits the creation or perfection of security interests therein; (h) Deposit Accounts or checking accounts with a value of less than, or having funds or other assets credited thereto with a value of less than, $1.0 million individually, so long as the aggregate balance of all such deposit and checking accounts does not at any one time exceed $10.0 million; (i) any motor vehicles, vessels and aircraft, or other property subject to a certificate of title; (j) any intent-to-use application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (k) any cash or Cash Equivalents securing reimbursement obligations under letters of credit or surety bonds, which letters of credit and surety bonds are otherwise not secured by Priority Liens, Junior Liens or Permitted ABL Liens; and (l) any equity interests in any joint venture with a third party that is not an Affiliate, to the extent a pledge of such equity interests is prohibited by the documents governing such joint venture; provided, however, that Excluded Property shall not include any Proceeds, substitutions or replacements of any Excluded Property referred to above and such Proceeds shall not constitute “Excluded Property” (unless such Proceeds, substitutions or replacements would constitute Excluded Property referred to above).
Appears in 1 contract
Samples: Priority Lien Pledge and Security Agreement (Unisys Corp)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof 2(1) of this Patent Security Agreement attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any the Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any the Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) aboveincluding, without limitation, any proceeds of such lease, license, contract, property rights or agreement; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation “controlled foreign corporation” (as defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation controlled foreign corporation without adverse tax consequences, the Patent Collateral shall include, and the security interest granted by each the Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporationcontrolled foreign corporation.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in Section 2.1 hereof or anything else, in no event shall the Collateral include include, and no Grantor shall be deemed to have granted a security interest in, or shall the security interest granted under Section 2.1 hereof attach to (clauses (a) to (m) collectively, the “Excluded Assets”):
(a) any Intellectual Property, lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC Uniform Commercial Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy CodeLaw) or principles of equity); provided, provided however however, that the Collateral shall include include, and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or ;
(b) any assets (other than accounts receivable or inventory) of any Grantor, which are subject to or secured by a Capital Lease Obligation or purchase money indebtedness permitted by clause (5) of the definition of “Permitted Debt” (as defined in the Indenture) so long as the documents governing such Capital Lease Obligation or purchase money indebtedness do not permit other liens on such assets;
(c) any of the outstanding voting capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.Corporation directly owned by any Grantor;
(i) any intent-to-use (ITU) United States trademark application for which an amendment to allege use or statement of use has not been filed under 15 U.S.C. § 1051(c) or 15 U.S.C. § 1051(d), respectively, or, if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a), or examined and accepted, respectively, by the United States Patent and Trademark Office, in each case, only to the extent the grant of security interest in such intent-to-use Trademark is in violation of 15 U.S.C. §1060 and only unless and until a “Statement of Use” or “Amendment to Allege Use” is filed, has been deemed in conformance with 15 U.S.C. §1051(a) or examined and accepted, respectively, by the United States Patent and Trademark Office at which point such Trademarks shall automatically be included as Collateral, (ii) any property or assets owned by any Excluded Subsidiary (subject to such Excluded Subsidiary otherwise becoming a Guarantor to the extent required by the terms of the Indenture) or any Unrestricted Subsidiary and (iii) any property or assets owned by Parent that is not owned by the Issuer or its Restricted Subsidiaries and (iv) any of the outstanding capital stock of any Unrestricted Subsidiary;
Appears in 1 contract
Samples: Pledge and Security Agreement (Euramax International, Inc.)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any Intellectual Property, lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability the rendering unenforceable of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or constitute a default underunder or termination of, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any Permitted Tax Distributions; or (c) in any of the outstanding capital stock Capital Stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock Capital Stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock Capital Stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.shall
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Reprographics CO)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 2(a) hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any each Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) aboveincluding, without limitation, any proceeds of such lease, license, contract, property rights or agreement; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation “controlled foreign corporation” (as defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation controlled foreign corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporationcontrolled foreign corporation.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any Non-Assignable Contract, lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in clause (i) or (ii) above; or (b) any of the outstanding capital stock Capital Stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock Capital Stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock Capital Stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock Capital Stock of each Controlled Foreign Corporation; provided further that any such Capital Stock to the extent excluded by this sub-clause (b) shall be defined herein as "EXCLUDED SUBSIDIARY INTERESTS".
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof 3.1 attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein therein, or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock of a Controlled an Excluded Foreign Corporation Subsidiary in excess of 65% of the voting power of all classes of capital stock of such Controlled Excluded Foreign Corporation Subsidiary entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Excluded Foreign Corporation Subsidiary without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Excluded Foreign CorporationSubsidiary; (c) any Excluded Capital Stock or (d) subject to Section 5.12, any Digital Cinema Equipment.
Appears in 1 contract
Samples: Guaranty and Collateral Agreement (Regal Entertainment Group)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement and any assets subject to any thereof, to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock Capital Stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock Capital Stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.greater
Appears in 1 contract
Samples: Pledge and Security Agreement (Danielson Holding Corp)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to, or the term "Collateral" be deemed to include, (a) any leaseExcluded Property, Government Receivables, Lease, Assignment Agreement, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if if, and for so long as as, the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such leaseGovernment Receivable, Excluded Property Document, Lease, Assigned Agreement or other license, contract, property rights or agreement or the violation of any applicable law (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseExcluded Property, Government Receivables, Lease, Assigned Agreement or other license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Samples: Pledge and Security Agreement (Mariner Health Care Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to to:
(a) any lease, license, contract, Intellectual Property, property rights contract or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (i) the abandonmentany law, invalidation rule or unenforceability of any rightregulation applicable to such Grantor, title or interest of any Grantor therein or (ii) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract, property rights right or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however however, that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (i) or (ii) above; provided, further, that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement;
(b) any of the outstanding voting capital stock or other voting equity interests of a Controlled Foreign Corporation CFC in excess of 65% of the voting power of all classes of capital stock or other equity interests of such Controlled Foreign Corporation CFC entitled to vote; provided that immediately upon the amendment ;
(c) any of the Tax Code to allow the pledge outstanding voting capital stock or other voting equity interest of a greater percentage Foreign Holding Company in excess of 65% of the voting power of all classes of capital stock or other equity interest of such Foreign Holding Company entitled to vote;
(d) any of the outstanding Equity Interests of (i)(x) any OZ Fund, including, without limitation, any OZ Fund listed on Schedule 2.2(A), or any entity that becomes an OZ Fund, and (y) any Subsidiaries of any such entities, (ii) any OZ Fund created after the date hereof and all Subsidiaries of such entities, (iii) any Joint Ventures and non-wholly owned Subsidiaries of any Grantor which cannot be pledged without the consent of one or more third parties (other than a Grantor) and any Subsidiaries of such Joint Ventures or non-wholly owned Subsidiaries; and (iv) any Subsidiary that is not a Domestic Subsidiary of any Grantor created or acquired after the date hereof;
(e) (i) all of the assets of any Qualified Risk Retention Subsidiary and (ii) the Equity Interests of any Qualified Risk Retention Subsidiary to the extent that such Equity Interest of such Qualified Risk Retention Subsidiary is pledged in connection with Indebtedness incurred pursuant to Section 6.01(v)(i) of the Credit Agreement; pursuant to which the Administrative Agent hereby agrees to automatically release or subordinate the Lien granted to it or held by it in accordance with Section 9.10(c)(iv) of the Credit Agreement;
(f) (i) all of the assets of any Alternative Investment Subsidiary and (ii) the Equity Interests of any Alternative Investment Subsidiary to the extent that such Equity Interest of such Alternative Investment Subsidiary is pledged in connection with Indebtedness incurred pursuant to Section 6.01(w)(i) of the Credit Agreement; pursuant to which the Administrative Agent hereby agrees to automatically release or subordinate the Lien granted to it or held by it in accordance with Section 9.10(c)(iv) of the Credit Agreement;
(g) any right, title and interest in and to the Investment Management Agreements and the LPAs (other than (x) all of Borrower’s and the other Grantors’ rights, if any, to payment under the Investment Management Agreements and the LPAs and (y) all rights of any Grantor to Management Fees and Incentive Allocations), and for the avoidance of doubt, the Collateral shall include and the security interest shall attach to the economic value of the Investment Management Agreements and the LPAs and the right to receive all monies, consideration and proceeds derived from or in connection with the sale, assignment or transfer of the Investment Management Agreements and the LPAs;
(h) any applications for trademarks and service marks filed in the U.S. Patent and Trademark Office pursuant to 15 U.S.C. § 1051 Section 1(b), to the extent that the grant of a Controlled Foreign Corporation without adverse tax consequencessecurity interest therein would impair the validity or enforceability of such application or any registration that issues from such intent-to-use trademark or service xxxx application, unless and until evidence of use of the xxxx in interstate commerce is submitted to the U.S. Patent and Trademark Office pursuant to 15 U.S.C. § 1051 Section l(c) or l(d), at which point the Collateral shall include, and the security interest granted by each Grantor hereunder shall attach to, such greater percentage application;
(i) motor vehicles and other goods subject to a certificate of capital stock title statute in any jurisdiction;
(j) pledges and security interests prohibited by applicable law, rule or regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code and other applicable law) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), in each Controlled Foreign Corporationcase, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code and other applicable law;
(k) any Letter of Credit Right to the extent that a lien thereon cannot be perfected by the filing of a Uniform Commercial Code financing statement;
(l) governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti assignment provisions of the Uniform Commercial Code and other applicable law;
(m) any property acquired after the Closing Date that is subject to a Permitted Lien of the type described in Section 6.02(a) of the Credit Agreement for so long as the contract or other agreement governing such Lien is permitted under the Credit Agreement and prohibits the creation of any other security interest on such property, except to the extent such prohibition is rendered ineffective after giving effect to applicable anti-assignment provisions of the Uniform Commercial Code and other applicable law;
(n) Deposit Accounts, Securities Accounts and Commodities Accounts consisting of and maintained solely as tax, payroll, healthcare, employee wage or benefit, fiduciary, escrow, defeasance, redemption and trust accounts for the benefit of unaffiliated third parties;
(o) Margin Stock;
(p) that certain Deposit Account, account number ending 134644999, maintained by Advisors at HSBC Bank USA, N.A. and all cash on deposit therein, to the extent and for so long as such account is used solely to hold cash used to cash collateralize letters of credit permitted pursuant to Section 6.01(q); and
(q) Equity Interests of any captive insurance companies, not-for-profit Subsidiaries, cooperatives, Immaterial Subsidiaries and special purpose entities; provided, however, that notwithstanding the foregoing, the Collateral shall include and the security interest granted under Section 2.1 hereof shall attach to any Proceeds of any of the property referred to in this Section 2.2 unless such Proceeds would themselves not constitute Collateral pursuant to this Section 2.2.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Och-Ziff Capital Management Group LLC)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 2(a) hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any each Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title Title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach attached immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) aboveincluding, without limitation, any proceeds of such lease, license, contract, property rights or agreement; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation “controlled foreign corporation” (as defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation controlled foreign corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporationcontrolled foreign corporation.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights contract or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (i) the abandonmentany law, invalidation rule or unenforceability of any rightregulation applicable to such Grantor, title or interest of any Grantor therein or (ii) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract, property rights contract or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement; (b) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 6566% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; (c) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (d) any Private Securities forming part of the Portfolio, or (e) any Miscellaneous Securities; provided that the exclusions referred to in clause (d) and (e) of this Section 2.2 shall not include any Proceeds of any Private Securities forming part of the Portfolio or any Proceeds of any Miscellaneous Securities.
Appears in 1 contract
Samples: Pledge and Security Agreement (Safeguard Scientifics Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (ai) any lease, license, contract, Intellectual Property, property rights contract or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (ix) the abandonmentany law, invalidation rule or unenforceability of any rightregulation applicable to such Grantor, title or interest of any Grantor therein or (iiy) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract, property rights contract or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (ix) or (iiy) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement; (bii) (x) any of the outstanding capital stock of a Controlled Foreign Corporation, other than in the case of a Controlled Foreign Corporation that is directly owned by a U.S. Loan Party or (y) in the case of a Controlled Corporation that is directly owned by a U.S. Loan Party, capital stock in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; (iii) any of the outstanding capital stock of an Immaterial Subsidiary; (iv) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (v) any Deposit Account or Securities Account of a Grantor to the extent exclusively used for payroll, taxes, employee benefits or other similar fiduciary purposes or (vi) any specifically identified asset with respect to which the Collateral Agent has determined in consultation with the Borrower Representative that the burden or cost of providing a Lien in such asset is excessive in view of the benefit to be obtained by the Collateral Agent and Lenders.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a1) any lease, license, contract, Intellectual Property, property rights contract or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (i1) the abandonmentany law, invalidation rule or unenforceability of any rightregulation applicable to such Grantor, title or interest of any Grantor therein or (ii1) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract, property rights contract or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-4069‑406, 9-4079‑407, 9-408 9‑408 or 9-409 9‑409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement; (b1) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment or (1) any “intent-to-use” application for registration of a Trademark filed pursuant to Section l(b) of the Tax Code Xxxxxx Act, 15 U.S.C. § 1051, prior to allow the pledge filing of a greater percentage “Statement of Use” pursuant to Section l(d) of the voting power Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section l(c) of capital stock the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in a Controlled Foreign Corporation without adverse tax consequenceswhich, the Collateral shall include, and the grant of a security interest granted by each Grantor shall attach therein would impair the validity or enforceability of any registration that issues from such intent-to, such greater percentage of capital stock of each Controlled Foreign Corporation-use application under applicable federal law.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; (c) any TBR Delayed Transfer Assets; (d) any Redemption Account or Defeasance Account; or (e) any other assets constituting real property.
Appears in 1 contract
Samples: Pledge and Security Agreement (Belden & Blake Corp /Oh/)
Certain Limited Exclusions. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to or shall any perfection requirements be required with respect to (a) any leaseof such Grantor’s right, title or interest in any license, contract, Intellectual Property, property rights lease or agreement to which any such Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the express terms of any Grantor therein such license, contract, lease or (ii) agreement result in a breach or termination pursuant to of the terms of, or constitute a default under, under or create a right of termination in favor of any party thereto (other than any Grantor) such lease, license, contract, property rights lease or agreement (other than to the extent that any such term (A) has been waived or (B) would be rendered ineffective pursuant to Sections 9-406, 9-407408, 9-408 or 9-409 of the UCC (or any successor provision or provisions) other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (ix) or (ii) above; or (b) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment ineffectiveness, lapse, termination or waiver of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequencesany such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such right, title and interest as if such provision had never been in effect and (y) the foregoing exclusion shall in no way be construed so as to limit, impair or otherwise affect the Administrative Agent’s unconditional continuing security interest in and liens upon any rights or interests of a Grantor in or to (1) monies due or to become due under or in connection with any such license, contract, lease or agreement, or (2) any proceeds from the sale, license, lease, or other dispositions of any such license, contract, lease or agreement); (b) any intent-to-use United States trademark applications for which an amendment to allege use or statement of use has not been filed under 15 U.S.C. § 1051(c) or 15 U.S.C. §1051(d), respectively, or if filed, has not been deemed in conformance with 15 U.S.C. §1051(a) or examined and accepted, respectively, by the United States Patent and Trademark Office, provided that upon such filing and acceptance, such intent-to-use applications shall be included in the definition of Collateral; (c) any Excluded Account; (d) those assets as to which the Administrative Agent reasonably determines that the costs of obtaining such security interests in such assets or perfection thereof are excessive in relation to the benefit to the Administrative Agent and the Lenders of the security to be afforded thereby; (e) motor vehicles, airplanes and other assets subject to certificates of title to the extent (i) a lien therein cannot be perfected by the filing of UCC financing statements and (ii) the aggregate fair market value of all such assets is less than $250,000; (f) letter of credit rights less than $250,000 in the aggregate, to the extent a lien therein cannot be perfected by the filing of UCC financing statements, and Commercial Tort Claims less than $250,000 in the aggregate; (g) any governmental licenses or state or local franchises, charters and authorizations to the extent a security interest granted is prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of applicable law (including the UCC), other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable law notwithstanding such prohibition, and (h) assets which a pledge thereof or a security interest therein is prohibited by each Grantor shall attach toapplicable law (including the UCC), other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable law notwithstanding such greater percentage of capital stock of each Controlled Foreign Corporationprohibition (the property referred to in this Section 2.2 being collectively referred to as “Excluded Assets”).
Appears in 1 contract
Samples: Pledge and Security Agreement (TherapeuticsMD, Inc.)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to, or the term "Collateral" be deemed to include, (a) any Excluded Property, Government Receivables, lease, Assignment Agreement, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if if, and for so long as as, the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such Government Receivable, Excluded Property Document, lease, Assigned Agreement or other license, contract, property rights or agreement or the violation of any applicable law (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such Excluded Property, Government Receivables, lease, Assigned Agreement or other license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Samples: Pledge and Security Agreement (Mariner Health Care Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section SECTION 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) Code or principles of equity), provided however PROVIDED, HOWEVER, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately upon the execution hereof to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above); or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation Subsidiary in excess of 6566% of the voting power of all classes of capital stock of such Controlled Foreign Corporation Subsidiary entitled to vote; provided PROVIDED, that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation Subsidiary without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign CorporationSubsidiary.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein contained in this Agreement to the contrary, in no event the term “Collateral” shall the Collateral include or the security interest granted under Section 2.1 hereof attach to not include:
(a) Owned Real Property with a fair market value equal to or less than $2,000,000 and any Leased Real Property;
(b) motor vehicles and other assets subject to certificates of title;
(c) commercial tort claims with reasonably predicted value equal to or less than $500,000;
(d) any permit, lease, license, contract, Intellectual Property, property rights contract or agreement held by any Grantor or to which any Grantor is a party or party, and any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any rightrights, title or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of (i) any Grantor therein law, rule or regulation applicable to such Grantor, or (ii) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such permit, lease, license, contract, property rights contract or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation relevant contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such permit, lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (i) or and (ii) above; provided further that the exclusions referred to in this Section 2.2 shall not include any Proceeds of any such permit, lease, license, contract or agreement;
(be) in any of the outstanding capital stock of a Controlled Foreign Corporation Subsidiary in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation Subsidiary entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code of 1986, as amended, to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation Subsidiary without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled such Foreign CorporationSubsidiary;
(f) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law;
(g) any Excluded Bank Accounts;
(h) any property or asset only to the extent and for so long as the grant of a security interest in such property or asset is prohibited by any applicable law or requires a consent not obtained, and has not been obtained after use by the applicable Loan Party of commercially reasonable efforts to obtain such consent, of any Governmental Authority pursuant to applicable Legal Requirement (after giving effect to Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction);
(i) capital stock or equity interests of a person (other than a Wholly Owned Subsidiary) the pledge of which would violate the Organizational Documents of such person that is binding on or relating to such capital stock or equity interests but solely to the extent and for so long as such restrictions exists;
(j) any property (and proceeds and products thereof) that is subject to a Lien securing Purchase Money Obligations or Capital Lease Obligations, in each case permitted under the Credit Agreement, to the extent the documents relating to such Lien securing such Purchase Money Obligations or Capital Lease Obligations would not permit such property (and proceeds and products thereof) to be subject to the Liens created under the Security Documents (provided that immediately upon the ineffectiveness, lapse or termination of any such restriction, the Collateral shall include, and the security interest granted by each Grantor shall attached to, such property (and proceeds and products thereof));
(k) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters and authorizations are prohibited or restricted by Applicable Law;
(l) any property or assets of any Excluded Subsidiary; and
(m) proceeds and products from any and all of the foregoing excluded collateral described in clauses (a) through and including (f), (j) (but only to the extent described in such clause) and (k), unless such proceeds or products would otherwise constitute Term Loan First Lien Collateral. Notwithstanding the foregoing, assets will be excluded from the Collateral in circumstances where in the reasonable judgment and sole discretion of the Collateral Agent the costs of obtaining a security interest in such assets exceed the practical benefit to the Secured Parties afforded thereby.
Appears in 1 contract
Samples: Security Agreement (Five Below, Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; provided further that such exclusion provided in this clause (b) shall not apply to the capital stock of Stora Enso Port Hawkesbury Limited, a Nova Scotia company all of which capital stock is hereby pledged as security for the Priority Lien Obligations; or (c) any Intellectual Property identified in Schedule 4.7(I).
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 2(a) hereof attach to (ai) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i1) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii2) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-4069406, 9-4079407, 9-408 9408 or 9-409 9409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i1) or (2) including, without limitation, any proceeds of such lease, license, contract, property rights or agreement; or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation "controlled foreign corporation" (as defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation controlled foreign corporation without material adverse tax consequencesconsequences to Grantor, the Collateral shall include, and the security interest granted by each such Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporationcontrolled foreign corporation.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above, and provided further that nothing in this Section 2.2 shall prevent the security interest granted under Section 2.1 hereof from attaching to any Assigned Government Contract; or (b) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Samples: Pledge and Security Agreement (Services International LLC)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof 2(1)(a) of this Trademark Security Agreement attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any each Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach attached immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) aboveincluding, without limitation, any proceeds of such lease, license, contract, property rights or agreement; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation “controlled foreign corporation” (as defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation controlled foreign corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporationcontrolled foreign corporation.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof 2(1) of this Trademark Security Agreement attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any the Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any the Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) aboveincluding, without limitation, any proceeds of such lease, license, contract, property rights or agreement; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation “controlled foreign corporation” (as defined in the Internal Revenue Code of 1986, as amended) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation controlled foreign corporation without adverse tax consequences, the Trademark Collateral shall include, and the security interest granted by each the Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporationcontrolled foreign corporation.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the include, and no Grantor shall be deemed to have granted a security interest granted under Section 2.1 hereof attach to in, (a) any leaseof BMCA's right, licensetitle or interest in any property sold to BMCA Receivables under the Receivables Purchase Agreement, contract, (b) any Intellectual Property, property rights if the grant of such security interest shall constitute or result in the abandonment, invalidation or rendering unenforceable any right, title or interest of such Grantor therein; (c) in any license, contract or agreement to which any such Grantor is a party or any of its rights or interests thereunder if and for so long as thereunder, including, without limitation, with respect to any Pledged Partnership Interests or any Pledged LLC Interests, to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement (including, without limitation, any partnership agreements or any limited liability company agreements), or otherwise, result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, under or termination of any such lease, license, contract, property rights contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 318(4) of the UCC (or any successor provision or provisionsprovision, including Section 9-406 of Revised Article 9) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity)) or would otherwise constitute a violation of law, provided however that regulation or policy; provided, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include include, and such each Grantor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result provision had never been in any of the consequences specified in (i) or (ii) aboveeffect; or (bd) in any of the outstanding capital stock of a "controlled foreign corporation" as defined in the Internal Revenue Code of 1986, as amended from time to time (each, a "Controlled Foreign Corporation Corporation"), in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation controlled foreign corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Samples: Security Agreement (Building Materials Investment Corp)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Pledge and Security Agreement Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, lease license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided, provided however however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock Capital Stock of a Controlled Foreign Corporation Subsidiary in excess of 65% of the voting power of all classes of capital stock Capital Stock of such Controlled Foreign Corporation Subsidiary entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock Capital Stock in a Controlled Foreign Corporation Subsidiary without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock Capital Stock of each Controlled Foreign CorporationSubsidiary.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Del Frisco's Restaurant Group, LLC)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 2.2 hereof attach to (a) any Intellectual Property, lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign CorporationCorporation or (c) with respect to perfection only, any item of personal property as to which the Collateral Agent shall determine in its reasonable discretion after consultation with the Company that the costs of perfecting a security interest in such item are excessive in relation to the value of such security being perfected thereby.
Appears in 1 contract
Samples: First Lien Pledge and Security Agreement (CVR Energy Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a first-tier Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such first-tier Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a first-tier Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each first-tier Controlled Foreign Corporation.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (X Rite Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder (including any rights or interests under, or in assets governed by the Infineum Agreement) if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock of a Controlled any Foreign Corporation Subsidiary in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation Subsidiary entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Samples: Pledge and Security Agreement (Kraton Polymers LLC)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the irrevocable abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such irrevocable abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, and provided that this Agreement is still in effect, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
Samples: Pledge and Security Agreement (American Medical Systems Holdings Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 2.2 hereof attach to (a) any Intellectual Property, lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however provided, however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; or (c) with respect to perfection only, any item of personal property as to which the Collateral Agent shall determine in its reasonable discretion after consultation with the Company that the costs of perfecting a security interest in such item are excessive in relation to the value of such security being perfected thereby. Notwithstanding anything herein to the contrary, the lien and security interest granted to the Collateral Agent pursuant to this Agreement (i) in the ABL Priority Collateral, shall be a first priority lien as provided in the Intercreditor Agreement and (ii) in the Note Priority Collateral, shall be a second priority lien as provided in the Intercreditor Agreement and the exercise of any right or remedy by the Collateral Agent hereunder in respect of Note Priority Collateral is subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control. Notwithstanding anything herein to the contrary, prior to the Payment in Full of First Lien Obligations, the requirements of this Agreement to deliver Note Priority Collateral and any certificates, Instruments or Documents in relation thereto to the Collateral Agent shall be deemed satisfied by delivery of such Note Priority Collateral and such certificates, Instruments or Documents in relation thereto to the First Lien Collateral Trustee (as bailee for the Collateral Agent). The parties hereto agree that the requirements of this Agreement to give control of any Note Priority Collateral to the Collateral Agent shall be deemed satisfied so long as such control is in place with the First Lien Collateral Trustee acting for the benefit of the Secured Parties pursuant to the terms of the Intercreditor Agreement. Each Grantor hereby acknowledges that (i) value has been given, (ii) it has rights in the Collateral or the power to transfer rights in the Collateral to the Collateral Agent (other than after-acquired Collateral), (iii) it has not agreed to postpone the time of attachment of the security interest, liens, assignments, mortgages, charges, hypothecations or pledges granted hereunder, and (iv) it has received a copy of this Agreement.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to any of the following (the “Excluded Property”) (a) any lease, license, contract, Intellectual Property, property rights right or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder thereunder, if and for so long as to the grant of such extent that a security interest shall is (i) prohibited by or in violation of any law, rule or regulation applicable to such Grantor, or (ii) will constitute or result in (i) the abandonmenta breach, invalidation termination or unenforceability of default under or requires any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, consent not obtained under any such lease, license, contract, property rights right or agreement (other than to the extent that any such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest in the Collateral pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach to any such lease, license, contract, property right or agreement) immediately at such time as the condition causing any such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights right or agreement that does not result in any of subject to the consequences prohibitions specified in subclauses (i) or (ii) aboveof this clause (a); provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract, property right or agreement; (b) any real property or fixtures located outside of the United States and any leasehold interests in real property; (c) any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code of 1986, as amended from time to time, to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation; (d) any other property or assets in which a Lien cannot be perfected by (i) the filing of a financing statement under the UCC of the relevant jurisdiction or (ii) a filing at the U.S. Patent and Trademark Office or the U.S. Copyright Offices, so long as the aggregate Fair Market Value of all such property and assets does not at any one time exceed $20.0 million; (e) any deposit account for taxes, payroll, employee benefits or similar items and any other account or financial asset in which such security interest would be unlawful or in violation of any Plan or employee benefit agreement; (f) accounts receivable and related assets transferred or purported to be transferred in a Permitted Securitization Program; (g) assets, with respect to which any applicable law prohibits the creation or perfection of security interests therein; (h) Deposit Accounts or checking accounts with a value of less than, or having funds or other assets credited thereto with a value of less than, $1.0 million individually, so long as the aggregate balance of all such deposit and checking accounts does not at any one time exceed $10.0 million; (i) any motor vehicles, vessels and aircraft, or other property subject to a certificate of title; (j) any intent-to-use application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (k) any cash or Cash Equivalents securing reimbursement obligations under letters of credit or surety bonds, which letters of credit and surety bonds are otherwise not secured by Priority Liens, Junior Liens or Permitted ABL Liens; and (l) any equity interests in any joint venture with a third party that is not an Affiliate, to the extent a pledge of such equity interests is prohibited by the documents governing such joint venture; provided, however, that Excluded Property shall not include any Proceeds, substitutions or replacements of any Excluded Property referred to above and such Proceeds shall not constitute “Excluded Property” (unless such Proceeds, substitutions or replacements would constitute Excluded Property referred to above).
Appears in 1 contract
Samples: Junior Lien Pledge and Security Agreement (Unisys Corp)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights contract or agreement to which any Grantor is a party or party, and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (i) the abandonmentany law, invalidation rule or unenforceability of any rightregulation applicable to such Grantor, title or interest of any Grantor therein or (ii) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract, property rights contract or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights contract or agreement that does not result in any of subject to the consequences prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement; (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation, (c) any United States intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto under 15 U.S.C. § 1051(c) or 15 U.S.C. § 1051(d), respectively, or if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a) or examined and accepted, respectively, by the United States Patent and Trademark Office, provided that, upon such filing and acceptance, such intent-to-use applications shall be included in the definition of Collateral, (d) equity interests of joint ventures, (e) motor vehicles, (f) any assets and any proceeds thereof that are subject to a Lien permitted by Section 6.2(m) of the Credit Agreement to the extent and for so long as the contract or other agreement pursuant to which such Lien is granted validly prohibits the creation of any other Lien on such assets and proceeds; (g) any property of a Person existing at the time such Person is acquired or merged with or into or consolidated with any Grantor that is subject to a Lien permitted by Section 6.2(r) of the Credit Agreement to the extent and for so long as the contract or other agreement in which such Lien is granted validly prohibits the creation of any other Lien on such property; and (g) other assets as may be agreed to by the Administrative Agent from time to time in writing.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any leaseLease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights (including property rights with respect to equipment) or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such leaseLease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation (i) in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon vote or (ii) to the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, extent the Collateral shall include, and Agent otherwise determines in its reasonable discretion after consultation with the security interest granted by each Grantor shall attach to, Company that any such greater percentage of capital stock of each Controlled Foreign Corporationpledge is not commercially feasible.
Appears in 1 contract
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however however, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such leaseLease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a first-tier Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such first-tier Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a first-tier Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each first-tier Controlled Foreign Corporation.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (X Rite Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest or Lien granted under Section 2.1 hereof 2.01 attach to (a) any lease, license, permit, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest or Lien (a) is prohibited by Law or (b) shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contractpermit, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law Law (including the Bankruptcy Code) or principles of equity), ; provided however that the Collateral shall include and such security interest or Lien shall attach immediately at such time as the condition causing such illegality, abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, permit, contract, property rights or agreement that does not result in any of the consequences specified in clause (ia) or (ii) above; or (b) any of above. Notwithstanding the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequencesforegoing, the Collateral shall includeinclude any Proceeds, and substitutions or replacements of any of the security interest granted by each Grantor shall attach toproperty described above (unless such Proceeds, such greater percentage of capital stock of each Controlled Foreign Corporationsubstitutions or replacements would constitute property described above).
Appears in 1 contract
Samples: Pledge and Security Agreement (Fusion Telecommunications International Inc)
Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract, Intellectual Property, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided however that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above; or (b) in any of the outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; provided that immediately upon the amendment of the Tax United States Internal Revenue Code of 1986, as amended from time to time, to allow the pledge of a greater percentage of the voting power of capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral shall include, and the security interest granted by each Grantor shall attach to, such greater percentage of capital stock of each Controlled Foreign Corporation.
Appears in 1 contract
