Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”): (i) all Accounts; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein; (iii) all Chattel Paper; (iv) all Documents; (v) all Equipment; (vi) all General Intangibles; (vii) all Goods; (viii) all Instruments, including all Pledged Securities; (ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory; (x) all Investment Property; (xi) all Intellectual Property; (xii) all Pledged Collateral; (xiii) all Records and all books and records pertaining to the Collateral; (xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights; (xv) all Supporting Obligations; (xvi) all cash and cash equivalents; (xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing; (xviii) all other personal property whatsoever of such Grantor; and (xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. (b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations. (c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower. (d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower. (e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 4 contracts
Samples: Guarantee and Collateral Agreement, Guarantee and Collateral Agreement, Guarantee and Collateral Agreement (CDW Finance Corp)
Security Interest. This Assignment constitutes either (ai) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge a valid ----------------- transfer and grant assignment to the Collateral Agent, its successors and permitted assigns Trust of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or and interest of the Seller in or and to any Receivables now existing and hereafter created in the Additional Accounts designated hereby, and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account proceeds (as defined in the Revolving Credit AgreementUCC as in effect in the State of New York) of such Receivables and all cashInsurance Proceeds and Recoveries relating thereto, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents such Receivables and other written materials related any proceeds thereof and Recoveries allocable to the purchase or import Trust and the Interchange relating to such Receivables pursuant to Section 2.5(k) of the Agreement will be held by the Trust free and clear of any Inventory;
Lien of any Person claiming through or under Seller or any of its Affiliates except for (x) all Investment Property;
Liens permitted under subsection 2.3(b) of the Pooling and Servicing Agreement and subject to Section 9.306 of the UCC in effect in the State of New York, (xiy) all Intellectual Property;
the interest of the Holder of the Seller Certificate and (xiiz) all Pledged Collateral;
the Seller's right to interest accruing on, and investment earnings in respect of, the Collection Account, the Retention Account or any Series Account as provided in the Pooling and Servicing Agreement; or (xiiiii) all Records and all books and records pertaining it constitutes a grant of a security interest (as defined in the UCC as in effect in the State of New York) in such property to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adoptedTrust, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) enforceable with respect to the Collateral or any part existing Receivables of the [Additional Accounts] [Automatic Additional Accounts] designated hereby, the proceeds (as defined in the UCC as in effect in the State of New York) thereof and amendments Insurance Proceeds relating thereto that (i) indicate upon the Collateral as “all assets” conveyance of such Grantor or words of similar effectReceivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts designated hereby, the proceeds (iias defined in the UCC as in effect in the State of New York) contain thereof, Recoveries allocable to the information required by Article 9 Trust and Interchange with respect to such Receivables pursuant to subsection 2.5(k) of the Uniform Commercial Code Pooling and Servicing Agreement upon such creation; and (iii) if this Assignment constitutes the grant of each applicable jurisdiction for a security interest to the Trust in such property, upon the filing of any a financing statement or amendmentdescribed in Section 4 of this Assignment with respect to the Additional Accounts designated hereby and, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed Receivables hereafter created in such Additional Accounts and the proceeds (as a fixture filingdefined in the UCC as in effect in the State of New York) thereof, a sufficient description of the real property Insurance Proceeds relating to which such Collateral relates. Each Grantor agrees to provide such information Receivables, Recoveries allocable to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower Trust and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Interchange with respect to or arising out such Receivables pursuant to subsection 2.5(k) of the Collateral. Nothing contained Pooling and Servicing Agreement, upon such creation, the Trust shall have a first priority perfected security interest in this such property, except for Liens permitted under subsection 2.5(b) of the Pooling and Servicing Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner provided in Section 9-306 of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except UCC as referred to in effect in the following sentence) shall have any State of the dutiesConnecticut or New York, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personwhichever is applicable.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust), Pooling and Servicing Agreement (Peoples Bank), Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its permitted successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all EquipmentGeneral Intangibles, including all Intellectual Property;
(vi) all General IntangiblesInstruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securitiesother Goods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims specifically described on Schedule III hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that none of “Article 9 Collateral”, any other term defined in the preceding paragraph or any term defined by reference to the UCC shall include, and in no event shall the Security Interest attach to, any Excluded Asset; provided further that Proceeds, substitutions or replacements of Excluded Assets shall not be subject to the preceding proviso unless such Proceeds, substitutions or replacements would themselves constitute Excluded Assets.
(b) Notwithstanding anything to Each Grantor hereby irrevocably authorizes the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) and continuation statements with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Administrative Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor (if required) and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of registered, issued or applied for Patents, Trademarks or Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 4 contracts
Samples: Credit Agreement (Blue Buffalo Pet Products, Inc.), Collateral Agreement (Blue Buffalo Pet Products, Inc.), Collateral Agreement (Blue Buffalo Pet Products, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xivxi) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsFixtures;
(xvxii) all Letter-of-Credit Rights but only to the extent constituting a Supporting ObligationsObligation for other Article 9 Collateral as to which perfection of a security interest in such Article 9 Collateral is accomplished by the filing of a UCC financing statement;
(xvixiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Assets and the term “Article 9 Collateral” shall not include any Excluded Assets.
(b) Subject to Section 3.01(e), the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect or as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 4 contracts
Samples: Security Agreement (TaskUs, Inc.), Security Agreement (Alight Inc. / DE), Security Agreement (TaskUs, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranty, each Grantor hereby confirms the pledge and grant to the Collateral Agentassigns, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all books and records pertaining to the Article 9 Collateral;
(xi) all Fixtures;
(xii) all Letter-of-Credit Rights but only to the extent constituting a Supporting Obligation for other Article 9 Collateral as to which perfection of a security interest in such Article 9 Collateral is accomplished by the filing of a UCC financing statement;
(xiii) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is Commercial Tort Claims listed on Schedule II and on any supplement thereto received by the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorCollateral Agent pursuant to Section 3.03(g); and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute an assignment, pledge or grant of a security interest in any other Senior Secured Note Document, Excluded Assets and the Equity Interests and other securities of term “Article 9 Collateral” shall not include any direct or indirect subsidiary of Holdings that are owned by any Excluded Assets.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained .
(d) The Collateral Agent is authorized to file with the USPTO or the USCO (or any successor office) such documents as may be necessary or advisable for the purpose of creating, attaching and perfecting the Security Interest in this Agreement shall be construed to make United States Intellectual Property of each Grantor in which a security interest has been granted by each Grantor hereunder, without the signature of any Grantor, and naming any Grantor as a debtor and the Collateral Agent as secured party. No Grantor shall be required to complete any filings governed by non-United States laws or take any other Secured Party liable as a member action with respect to the perfection of the Security Interests created hereby in any limited liability company Intellectual Property subsisting in any jurisdiction outside of the United States.
(e) Notwithstanding anything to the contrary herein or as a partner in the Loan Documents and without limiting the provisions contained in the Collateral and Guarantee Requirement, none of any partnershipthe Grantors shall be required, neither nor is the Collateral Agent nor any other Secured Party authorized, (i) to perfect the Security Interests granted by virtue of this Agreement or otherwise (except as referred including Security Interests in Investment Property and Fixtures) by any means other than by (A) filings pursuant to the UCC in the following sentence) shall have any office of the dutiessecretary of state (or similar central filing office) of the relevant State(s), obligations and filings in the applicable real estate records with respect to any fixtures relating to Mortgaged Properties, (B) filings with the USPTO or liabilities the USCO, as applicable, with respect to Intellectual Property of a member of any limited liability company or the Grantors as a partner in any partnership. The parties hereto expressly agree thatrequired elsewhere herein, unless (C) delivery to the Collateral Agent shall become the owner to be held in its possession of Pledged all Collateral consisting of a limited liability company interest Instruments and certificated Pledged Equity as expressly required elsewhere herein or a partnership interest (D) other methods expressly provided herein, (ii) to enter into any control agreements, other control arrangements or perfection by “control” (other than in respect of certificated Equity Interests and Pledged Debt otherwise required to be pledged pursuant heretoto the terms hereof), (ii) to take any actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction in order to create or perfect any security interests in any assets, including any intellectual property registered in any non-U.S. jurisdiction (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (iii) to enter into any landlord waivers, estoppels, warehouseman waivers or other collateral access or similar letters or agreements, or (iv) to take any actions other than the filing of UCC financing statements to perfect security interests in any Collateral consisting of leasehold interests or proceeds of Collateral. Notwithstanding anything to the contrary in this Agreement, to the extent that there is an express conflict between this Agreement shall not be construed as creating a partnership or joint venture among and the Collateral Agentand Guarantee Requirement, any other Secured Party, any Grantor and/or any other Personthe Collateral and Guarantee Requirement shall govern and control.
Appears in 4 contracts
Samples: Security Agreement (PF2 SpinCo, Inc.), Security Agreement (PF2 SpinCo LLC), Security Agreement (Change Healthcare Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Notes Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all AccountsProperty;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAccounts;
(iii) all Chattel Paper;
(iv) all DocumentsCommercial Tort Claims listed on Schedule II hereto;
(v) all Deposit Accounts;
(vi) all Documents;
(vii) all Equipment;
(viviii) all General Intangibles;
(viiix) all GoodsInstruments;
(viiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) any letter-of-credit rights, (B) any Securitization Assets, (C) motor vehicles and other assets subject to certificates of title, (D) any Equity Interests in any Unrestricted Subsidiary or any other Senior Secured Note Document, the Equity Interests and other securities of any Subsidiary acquired pursuant to a Permitted Acquisition financed with Indebtedness incurred pursuant to Section 7.03(g) of the Senior Credit Agreement if such Equity Interests serve as security for such Indebtedness or if the terms of such Indebtedness prohibit the creation of any other lien on such Equity Interests, (E) more than 65% of the issued and outstanding voting Equity Interests of any Material Foreign Subsidiary that is a direct or indirect subsidiary of Holdings Holdings, (F) Equity Interests of any Foreign Subsidiary that is not a Material Foreign Subsidiary, (G) Equity Interests of any Subsidiary of a Foreign Subsidiary that is a direct or indirect Subsidiary of Holdings, (H) Equity Interests of any Foreign Subsidiary that are pledged pursuant to a Foreign Pledge Agreement, (I) Equity Interests of any Person that is not an indirect, wholly owned by Subsidiary of Holdings III, (J) (i) if there are outstanding Obligations under the Senior Credit Facilities, any Grantor will constitute Collateral securing Note Obligations for asset with respect to which the benefit of Senior Secured Note Holders only Administrative Agent has confirmed in writing to the extent Issuer its determination that the costs of providing a security interest in such Equity Interests and other securities can secure asset or perfection thereof is excessive in view of the benefits to be obtained by the secured parties under the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 Credit Agreement or Rule 3-16 of Regulation S-X (ii) if there are no outstanding Obligations under the Securities Act Senior Credit Facilities, any asset with respect to which the board of directors or the senior management of the Issuer has confirmed in writing to the Trustee and the Notes Collateral Agent its reasonable determination that the costs of providing a security interest in such asset or perfection thereof is excessive in view of the benefits to be obtained by the Secured Parties, (K) security interests prohibited by law or by agreements containing anti-assignment clauses not overridden by the UCC or other applicable law or (L) any General Intangible, Investment Property or other rights of a Grantor arising under any contract, lease, instrument, license or other document or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties assets subject thereto if (but only to the extent necessary to not be subject to that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such requirement) (any such Equity Interests General Intangible, Investment Property or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations rights in favor of the Note Secured Parties. For a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein shall not include negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such Equity Interests contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided, however, that the limitation set forth in clause (L) above shall remain not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral securing to the Loan Obligations extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the Uniform Commercial Code. Each Grantor shall, if requested to do so by the Trustee, use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable with respect to Collateral which the Trustee reasonably determines to be material.
(b) Each Grantor hereby irrevocably authorizes the Notes Collateral Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including including
(xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 4 contracts
Samples: Security Agreement (Freescale Semiconductor, Ltd.), Security Agreement (Freescale Semiconductor, Ltd.), Security Agreement (Freescale Semiconductor Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, together with its permitted successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest interest, regardless of where located (but in all cases excluding any Excluded Collateral, collectively, the “Collateral”Assets):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments and Promissory notes;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged Collateralcash and Moneys;
(xiii) all Records and Securities Accounts;
(xiv) all Commercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(c);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and substitutions, replacements for and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoingforegoing (all of the above in this Section 3.01, the “Article 9 Collateral”). It is understood that the term “Article 9 Collateral” shall not include any Excluded Asset; provided, however, that Article 9 Collateral shall include any Proceeds, substitutions or replacements of any of the foregoing (unless such Proceeds, substitutions or replacements would constitute an Excluded Asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant U.S. jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents any Copyright Security Agreement, Patent Security Agreement or Trademark Security Agreement, as applicable, as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of issued, registered or applied for United States Patents, United States Trademarks or United States Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 4 contracts
Samples: First Lien Collateral Agreement (Franchise Group, Inc.), Second Lien Collateral Agreement (Franchise Group, Inc.), First Lien Collateral Agreement (Franchise Group, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and (4) all other money in the possession of the Administrative Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any Equity Interests acquired after the Closing Date in a person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation existed at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 6.01(i) of the Credit Agreement or any equivalent exception in any other Senior Secured Note DocumentAgreement that is secured by a Permitted Lien), (c) any (x) property excluded from the Equity Interests definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof (other than Section 3.01(a)(iv)) and (y) Rule 3-16 Collateral solely to the extent and with respect to the obligations described in the last paragraph of Section 3.01, (d) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Administrative Agent promptly upon written request, including providing within 30 days of any reasonable request therefor legal descriptions of real property (other than real property subject to a Mortgage) on which timber to be cut of such Pledgor is located. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Administrative Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Samples: Guarantee and Collateral Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.), Guarantee and Collateral Agreement (Verso Paper Corp.)
Security Interest. (a) As Each Grantor hereby ratifies and affirms its pledge, assignment and grant of security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) interest made pursuant to Section 4.01 of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Existing Guarantee and Collateral Agreement, and, for the ratable benefit avoidance of the Loan Secured Partiesdoubt, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations)Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all insurance claims and proceeds;
(xi) all Intellectual PropertyLetter-of-credit rights;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Collateral Agent, including describing such property as “all assets” or “all property”. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Samples: Guarantee and Collateral Agreement (Dennys Corp), Credit Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(iI) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiiII) all Chattel Paper;
(ivIII) all Cash and Deposit Accounts;
(IV) all Documents;
(vV) all Equipment;
(viVI) all General Intangibles, including all Intellectual Property;
(viiVII) all GoodsInstruments;
(viiiVIII) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xIX) all other Goods and Fixtures;
(X) all Investment Property;
(xiXI) all Intellectual PropertyLetter-of-Credit Rights;
(xiiXII) all Pledged CollateralCommercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(c);
(xiiiXIII) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixXIV) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that in no event shall the Security Interest attach to and no representation, warranty or covenant contained herein or in any other Security Document shall apply to (A) any Excluded Assets and (B) the Excluded Equity Interests (it being understood that, to the extent the Security Interest shall not have attached to any such asset as a result of clauses (A) and (B) above, the term “Article 9 Collateral” shall not include any such asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings but excluding Intellectual Property filings, which are addressed below) with respect to the Collateral or any part thereof and amendments thereto thereto, including continuations, that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor Grantor, if applicable, and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written the Collateral Agent’s reasonable request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto with respect to the Borrower.
(d) Article 9 Collateral or any part thereof naming any Grantor as debtor or the Grantors as debtors and the Collateral Agent as secured party, if filed prior to the date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of United States registered or applied for Patents, Trademarks or Copyrights, including exclusive Copyright Licenses, granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, No Grantor shall be required to promptly furnish copies of such complete any filings or other action with respect to the Borrowerperfection of the Security Interests created hereby in any Intellectual Property subsisting in any jurisdiction outside of the United States.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Samples: Collateral Agreement (Vacasa, Inc.), Collateral Agreement (Vacasa, Inc.), Collateral Agreement (EverCommerce Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Notes Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all Goods;
(viiix) all Instruments, including all Pledged Securities;
(ixxi) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting ObligationsLetters of Credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorMoney; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset or any other Senior Secured Note Document, Excluded Security.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Notes Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties Agent (but only to the extent necessary to Notes Collateral Agent shall not be subject to such requirementrequired) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Samples: Pledge and Security Agreement, Pledge and Security Agreement (Avaya Inc), Pledge and Security Agreement (Avaya Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInstruments;
(x) all Investment Intellectual Property;
(xi) all Intellectual PropertyInventory;
(xii) all Investment Property other than the Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xiv) all minerals, oil, gas and As-Extracted Collateral;
(xv) all Supporting Obligations;books and records pertaining to the Article 9 Collateral; and
(xvi) all cash substitutions, replacements, accessions, products and cash equivalents;
proceeds (xviiincluding insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in any Credit Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) and the other provisions of the Credit Documents with respect to Collateral need not be satisfied with respect to (a) motor vehicles or other assets subject to certificates of title and commercial tort claims, (b) any assets over which the granting of security interests in such assets would be prohibited by an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof and was not created or made binding on the assets in contemplation or in connection with the acquisition of such assets (except in the case of assets owned on the Issue Date or acquired after the Issue Date with Indebtedness of the type permitted pursuant to Section 4.03(b)(iv) of the Indenture and any equivalent provision in any Other Second-Priority Lien Obligations Document), applicable law or regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, other Senior Secured Note Documentthan proceeds thereof, the Equity Interests and other securities assignment of any direct which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests security interests would require obtaining the consent of any governmental authority or would result in materially adverse tax consequences as reasonably determined by the Issuer in writing delivered to the Collateral Agent, (c) those assets with respect to which, in the reasonable judgment of the Applicable Agent and the Issuer, evidenced in writing delivered to the Agent, the costs or other securities consequences of obtaining or perfecting such a security interest are excessive in view of the benefits to be obtained by the Secured Parties therefrom, (d) any Letter of Credit Rights (other than to the extent a Lien thereon can secure the Senior Secured Notes and/or the guarantees be perfected by filing a customary financing statement), (e) any Excluded Securities, (f) any Pledgor’s right, title or interest in respect thereof without Rule 3-10 any license, contract or Rule 3-16 of Regulation S-X under the Securities Act (agreement to which such Pledgor is a party or any other lawof its right, rule title or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due interest thereunder to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent, that such a grant would violate the terms of applicable law or of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such license, contract or agreement to which such Pledgor is a party (other than to the extent necessary that any such term would be rendered ineffective pursuant to not Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or regulation (including the Bankruptcy Code) or principles of equity); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (g) any equipment or other asset owned by any Pledgor that is subject to a purchase money lien or a Capitalized Lease Obligation, in each case, as permitted under the Indenture and not prohibited by any other Credit Document, if the contract or other agreement in which such requirementLien is granted (or the documentation providing for such Capitalized Lease Obligation) prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted by under the Indenture and not prohibited by any other Credit Document, (h) any foreign collateral or credit support with respect to such foreign collateral (other than any such Equity Interests assets pledged pursuant to the Pledge Agreement), (i) any real property (owned or leased) or oil and gas properties (owned or leased) other securitiesthan the Mortgaged Properties, and (j) any asset at any time that is not then subject to a Lien securing First-Priority Lien Obligations at such time (the foregoing clauses (a) through (j), the “Excluded Note CollateralAssets”). In such eventWith respect to the Collateral, no control agreements or control arrangements will be required with respect to any Deposit Accounts, Securities Accounts, Commodity Contracts or any other asset, the Security Documents may be amended perfection of a security interest in which specifically requires a control arrangement or modified, without control agreement (other than the consent delivery of Pledged Securities to the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Applicable Agent to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted required by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirementArticle II). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Samples: Collateral Agreement (EP Energy Corp), Collateral Agreement (EP Energy Corp), Collateral Agreement (EP Energy Corp)
Security Interest. (a) As security for If, notwithstanding the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) intent of the Loan Obligations (other than contingent obligationsparties stated in Section 2.01(c), each Grantor hereby confirms the pledge sale, assignment and grant transfer of any Sold Assets to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Administrative Agent (for the ratable benefit of the Loan Purchasers) hereunder (including pursuant to Section 2.01(b)) is not treated as a sale for all purposes (except as provided in Sections 2.01(d) and 12.11), then such sale, assignment and transfer of such Sold Assets shall be treated as the grant of a security interest by the Seller to the Administrative Agent (for the ratable benefit of the Purchasers) to secure the payment and performance of all the Seller’s obligations to the Administrative Agent, the Purchasers and the other Secured PartiesParties hereunder and under the other Transaction Documents (including all Seller Obligations). Therefore, and as security for the performance by the Seller of all the terms, covenants and agreements on the part of the Seller to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (Aggregate Capital and all Yield and all other than contingent obligations)Seller Obligations, each Grantor the Seller hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing first priority security interest in in, all of the Seller’s right, title or and interest in or in, to any and under all of the following assets and properties in each case Sold Assets, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoingarising.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations The Administrative Agent (for the benefit of Senior the Secured Note Holders only Parties) shall have, with respect to all the Sold Assets, and in addition to all the other rights and remedies available to the extent that such Equity Interests and other securities can secure Administrative Agent (for the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part benefit of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. ), all the rights and remedies of a secured party under any applicable UCC.
(c) For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” grant of such Grantor or words of similar effectsecurity interest pursuant to this Section 2.07 shall be in addition to, and shall not be construed to limit or modify, the sale of Sold Assets pursuant to Section 2.01(b) or the Seller’s grant of security interest pursuant to Section 2.08, (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) nothing in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement Section 2.01 shall be construed to make as limiting the Collateral Agent or rights, interests (including any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the dutiessecurity interest), obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree thatparty under this Section 2.07, unless and (iii) subject to the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoforegoing clauses (i) and (ii), this Agreement Section 2.07 shall not be construed as creating a partnership or joint venture among to contradict the Collateral Agent, any other Secured Party, any Grantor and/or any other Personintentions of the parties set forth in Section 2.01(c).
Appears in 3 contracts
Samples: Receivables Purchase Agreement (Centuri Holdings, Inc.), Receivables Purchase Agreement (Fortrea Holdings Inc.), Receivables Purchase Agreement (Rackspace Technology, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Senior Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual PropertyLetter-of-Credit Rights;
(xiix) all Pledged Collateralthe Commercial Tort Claims described on Schedule III and on any supplement thereto received by the Administrative Agent pursuant to Section 3.04(c);
(xiiixi) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) motor vehicles or other assets subject to certificates of title, (B) deposit accounts or securities accounts, (C) Receivables Management Assets owned by, or owing to, any Person (other Senior Secured Note Document, than the Equity Interests and other securities of any direct Borrower or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations a Restricted Subsidiary) or held in trust for the benefit of Senior Secured Note Holders only to the extent that any such Equity Interests Person, and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and of Excluded Receivables Management Subsidiaries (D) any Excluded Equity, (E) any asset with respect to which the Administrative Agent has confirmed in writing to the Borrower its determination that the costs or other securities consequences (including adverse tax consequences) of such subsidiary shall automatically be deemed not providing a security interest in is excessive in view of the benefits to be part obtained by the Lenders, (F) any General Intangible, Investment Property or other property or rights of the Collateral securing the Note Obligations in favor of the Note Secured Parties a Grantor arising under or evidenced by any contract, lease, instrument, license or other document if (but only to the extent necessary to not be subject to that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such requirement) (any such Equity Interests General Intangible, Investment Property or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended property or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations rights in favor of the Note Secured Parties. For a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such Equity Interests contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided, however, that the limitation set forth in clause (F) above shall remain not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral securing to the Loan Obligations extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the UCC, (G) any license, permit, franchise, authorization, consent, registration or other approval issued by the Federal Communications Commission (or any equivalent state agency) (collectively, the “FCC Licenses”) held by any Grantor to the extent that any requirement of law applicable thereto prohibits the creation of a Lien thereon, but only to the extent, and for so long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by any applicable law, including the UCC or (H) Margin Stock unless the applicable requirements of Regulations T, U and X of the Board of Governors of the Federal Reserve have been satisfied.
(b) Each Grantor hereby irrevocably authorizes the Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Samples: Credit Agreement (West Corp), Credit Agreement (West Customer Management Group, LLC), Security Agreement (West Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case properties, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;Investment Property:
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(x) all Goods and Fixtures;
(xi) all Money, cash, cash equivalents, Deposit Accounts, Securities Accounts and Commodities Accounts;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims listed on Schedule III and any supplement thereto;
(xiv) the Collateral Account, and all letters of credit under which such Grantor is the beneficiary cash, Money, Securities and Letter of Credit Rightsother investments deposited therein;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalentsSecurity Entitlements in any or all of the foregoing;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that Article 9 Collateral shall not include, and the Security Interest shall not attach to, any of the following assets or property, each being an “Excluded Asset”:
(i) any asset (including any Equipment or Inventory owned by a Grantor that is subject to a Lien permitted under Section 7.01(i) of the Credit Agreement securing Indebtedness permitted under Section 7.03 of the Credit Agreement to finance or refinance such Equipment or Inventory) or any lease, license, franchise, charter, authorization, contract or agreement to which any Loan Party is a party, together with any rights or interest thereunder, in each case, if and to the extent security interests therein (x) are prohibited by or in violation of any applicable Law, (y) requires any governmental consent or consent of a third party that is not a Loan Party or an Affiliate of a Loan Party (to the extent the applicable Loan Party has used commercially reasonable efforts to obtain such consent) that has not been obtained or (z) in the case of any lease, license, franchise, charter, authorization, contract or agreement, is prohibited by or in violation of a term, provision or condition of any such lease, license, franchise, charter, authorization, contract or agreement to which such Grantor is a party, except, in the case of each of the foregoing clauses (x), (y) and (z), to the extent that such prohibition or restriction would be rendered ineffective under the UCC or other applicable Law or principle of equity; provided, however, that, notwithstanding the foregoing, the Collateral shall include (and the Security Interest shall attach) at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, shall attach to any portion of such asset, lease, license, franchise, charter, authorization, contract or agreement not subject to the prohibitions specified in clauses (x), (y) or (z) above; provided, further, that the Excluded Assets referred to in this clause (i) shall not include any Proceeds or receivables of any such asset, lease, license, franchise, charter, authorization, contract or agreement;
(ii) the Excluded Equity Interests;
(iii) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing and acceptance 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 (it being understood that after such filing and acceptance such intent-to-use application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral);
(A) any leasehold interest (including any ground lease interest) in real property, (B) any fee interest in owned real property with a fair market value below $10,000,000 and (C) any Fixtures affixed to any real property to the extent (x) such Fixtures are affixed to any real property with a fair market value below $10,000,000 or (y) a security interest in such Fixtures may not be perfected by the filing of a UCC financing statement in the jurisdiction of organization of the applicable Grantor.
(v) (A) as extracted collateral, (B) timber to be cut, (C) farm products and (D) manufactured homes;
(vi) any particular asset, if the pledge thereof or the security interest therein would result in material adverse tax consequences to any Grantor as reasonably determined by the Borrower with notice in writing (which shall reasonably identify the basis for such determination) to the Administrative Agent;
(vii) any specifically identified asset with respect to which the Administrative Agent has determined (in its reasonable judgment) that the costs of obtaining, perfecting or maintaining a Security Interest or pledge in such asset exceed the fair market value thereof (as determined by the Borrower in its reasonable judgment) or the practical benefit to the Secured Parties afforded thereby;
(viii) Excluded Intercompany Debt; and
(ix) motor vehicles, aircraft and other assets subject to certificates of title or ownership (including, without limitation, aircraft, airframes, aircraft engines or helicopters, or any equipment or other assets constituting a part thereof, in each case to the extent subject to Federal Aviation Act registration requirements, and rolling stock; provided that if and when any property shall cease to be an Excluded Asset, a Lien on and security interest in such property shall be deemed granted therein and the provisions of this Agreement shall apply to such property, including the Proceeds of any General Intangible, Instrument, license, property right, permit or any other contract or agreement (except to the extent such Proceeds are an Excluded Assets). Notwithstanding anything to the contrary, the Proceeds of, or in respect of, any Excluded Assets shall constitute Article 9 Collateral (except to the extent such Proceeds are an Excluded Asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement including indicating the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further irrevocably authorized to file (to the extent the Grantors have not already made such filings) Intellectual Property Security Agreements, or supplement or amendments thereof, executed by the applicable Grantor(s) with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such offices). Without limiting the rights and remedies of the Collateral Agent arising under Applicable Law and under the Loan Documents, the Parties agree that in the event an Intellectual Property Security Agreement, or supplement or amendments thereof, is no longer a reasonably acceptable form of documentation to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor offices), as applicable, the authorization granted in the preceding sentence extends to any other documents as may be and actions reasonably necessary for the purpose of perfectingto evidence, confirmingrecord, continuing, enforcing confirm or protecting otherwise perfect the Security Interest granted by each Grantorin IP Collateral consisting of U.S. issued Patents, without U.S. registered Trademarks or U.S. registered Copyrights (and applications for any of the signature of any Grantor, and foregoing) naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The , but, except as provided under Article V hereof or under the Loan Documents, the Collateral Agent agrees, upon request by the Borrower and at the Borroweris not authorized to execute any such documents on any Grantor’s expense, to promptly furnish copies of such filings behalf (to the Borrowerextent such execution is necessary).
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Samples: Second Lien Security Agreement, First Lien Security Agreement (Advantage Solutions Inc.), Second Lien Security Agreement (Advantage Solutions Inc.)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Money and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all GoodsInstruments;
(viiih) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xi) all Investment Property;
(xij) all Letter-of-Credit Rights;
(k) all Intellectual Property;
(xiil) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiim) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held Security Entitlements in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorrespect thereof; and
(xixiii) all cash held in any Securities Account or Deposit Account;
(n) all books and Records pertaining to the extent not otherwise included, Article 9 Collateral; and
(o) all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, (i) the Equity Interests Article 9 Collateral will not include any Pledged Collateral and other securities (ii) the Article 9 Collateral (and any components comprising thereof) will not include, this Agreement will not constitute a grant of any direct or indirect subsidiary of Holdings that are owned by any Grantor a security interest in, the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only not attach to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (no representation, warranty, covenant or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (provision contained in this Agreement or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary Security Document shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agentapply to, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Subject to the limitations set forth in Section 4.01(6), each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor; and
(yb) a description of collateral that describes such property in any manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the case Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatessimilar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon reasonable written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted in Intellectual Property by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Samples: Term Loan Guarantee and Collateral Agreement, Abl Guarantee and Collateral Agreement (Impax Laboratories, LLC), Term Loan Guarantee and Collateral Agreement (Amneal Pharmaceuticals, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligationsSecured Obligations, and subject to Section 4.01(d), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in in, to or under which such Grantor now has or at any time in the future hereafter may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims described on Schedule IV, as such schedule may be supplemented from time to time pursuant to Section 4.02(e);
(xiii) all Records and all books and records pertaining to the CollateralFixtures that are personal property;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; and
(xv) all books and records pertaining to the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, effect or of a lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide the information required for any such information filing to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dor its designee) The Collateral Agent is further authorized by each Grantor to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in United States Intellectual Property granted by each such Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything herein to the contrary, to the extent and for so long as any asset is Excluded Property, the Security Interest granted under this Section 4.01 shall not attach to, and the Collateral shall not include, such asset; provided, however that the Security Interest shall immediately attach to, and the Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be Excluded Property.
(e) Notwithstanding anything to the contrary in the Loan Documents, none of the Grantors shall be required (i) to perfect the Security Interest granted by this Agreement shall be construed (including any Security Interest in Investment Property and Fixtures) by any means other than by (A) filings pursuant to make the Uniform Commercial Code of the relevant State(s), (B) filings in United States government offices with respect to Intellectual Property as expressly required elsewhere herein, (C) delivery to the Collateral Agent or any other Secured Party liable as a member to be held in its possession of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged all Collateral consisting of a limited liability company interest Instruments or a partnership interest pursuant heretoPledged Collateral as expressly required elsewhere herein (together with any necessary endorsements, this Agreement shall not be construed as creating a partnership stock powers or joint venture among other instruments of transfer reasonably requested by the Collateral Agent) or (D) other methods provided for in Section 4.04, (ii) to take any action (other Secured Partythan the actions listed in clauses (i)(A), (B) and (C) above) with respect to any Grantor and/or assets located outside of the United States, (iii) to perfect the security interests granted by this Agreement by taking any other Personactions required under the laws of any jurisdiction outside the United States or (iv) to perfect any security interests granted by this Agreement in any assets subject to a certificate of title statute.
Appears in 3 contracts
Samples: Security Agreement (MSG Entertainment Spinco, Inc.), Security Agreement (MSG Entertainment Spinco, Inc.), Security Agreement (Madison Square Garden Co)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any other Senior Secured Note DocumentEquity Interests in any Subsidiary of either Issuer, (c) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any Equity Interests acquired after the Closing Date in a Person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation exited at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date, to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture that is secured by a Permitted Lien), (d) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (e) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (f) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The , including providing within 30 days of any reasonable request therefor legal descriptions of real property (other than real property subject to a mortgage in favor of the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, Agent) on which timber to promptly furnish copies be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Collateral Agreement (Verso Sartell LLC), Collateral Agreement (Verso Paper Corp.)
Security Interest. The Loan shall be evidenced by the Note and secured by the following, all dated and delivered as of the Closing Date:
(a) As security for that certain Limited Liability Company Membership Interest Pledge Agreement given by Holdings to Lender constituting a perfected pledge and assignment of all of Holdings’ membership interests in the payment or performanceBorrower and all of Holdings rights to receive Distributions from the Borrower (together with any Amendments thereto, as the case may be“Holdings Pledge Agreement”);
(b) that certain Limited Liability Company Membership Interest Pledge Agreement given by Borrower to Lender constituting a perfected pledge and assignment of all of its membership interests in 00 Xxxx Xxxxxx Xxxxx L.L.C., the owner of 00 Xxxx Xxxxxx Xxxxx (“77 West Xxxxxx”), Prime Group Management, L.L.C. and all of Borrower’s rights to receive Distributions from 00 Xxxx Xxxxxx Xxxxx L.L.C., 000 Xxxxx Xxxx. Mezzanine, L.L.C., and 000 Xxxxxx Xxxx., L.L.C. (together with any Amendments thereto, the “77 West Xxxxxx Pledge Agreement”);
(c) that certain Limited Liability Company Membership Interest Pledge Agreement given by 000 Xxxxx Xxxx. Mezzanine, L.L.C. to Lender constituting a perfected pledge and assignment of 49% of its membership interests in full when due 000 Xxxxx Xxxx., L.L.C., the owner of 000-000 Xxxxx Xxxx. (whether “Xxxxx”) (together with any Amendments thereto, the “Xxxxx Pledge Agreement”);
(d) that certain First Mortgage and Assignment of Rents and Leases and Assignment of Contracts given by 000 Xxxxxx Xxxx., L.L.C. to Lender constituting a first mortgage on The Atrium Building (“Atrium”) located at stated maturity000 Xxxxxx Xxxxxxxxx, Naperville, Illinois (together with any Amendments thereto, the “Atrium Mortgage”);
(e) that certain Collateral Assignment of Mortgage given by acceleration or otherwiseBorrower to Lender of its existing Second Mortgage on Continental Towers (“Continental Towers”) located at 0000 Xxxx Xxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx (together with any Amendments thereto, the “Continental Towers Assignment”);
(f) that certain Subordination Agreement given by Prime Group Management, L.L.C., Prime Group Realty, L.P. and Prime Group Realty Services, Inc. (the “Management Companies”) subordinating the claims of the Management Companies under their management agreements with the Subsidiary Pledgors and the Borrower to the claims of the Lender under and in connection with this Agreement (together with any Amendments thereto, the “Management Subordination Agreement”);
(g) that certain Deposit Account Agreement executed by each of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant Parties to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time Lender substantially in the future may acquire form of Exhibit K attached hereto (together with any right, title or interest (but excluding any Excluded CollateralAmendments thereto, collectively, the “CollateralDeposit Account Agreement”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor); and
(xixh) UCC-1 financing statements executed by each of Borrower, Holdings, and the applicable Subsidiary Pledgors covering their respective membership interests pledged pursuant to their respective Pledge Agreements (dated and filed of record prior to the extent not otherwise includedClosing Date, all Proceedsthe “Financing Statements”). The Pledge Agreements, all accessions to the Atrium Mortgage, the Continental Towers Assignment, the Financing Statements and substitutions and replacements for and products of the Deposit Account Agreement, together with any and all of other assignments, pledges, documents, and agreements now or hereafter executed in connection herewith and evidencing or securing the foregoing Loan and all offsprings, rents profits and products of any amendments to any of the foregoing and all collateral security and guarantees given are referred to herein collectively as the “Security Documents”. The property assigned, pledged, transferred and/or encumbered by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended together with any and all other property securing payment and/or performance by one or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit more of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In Obligations is referred to herein collectively as the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written requestCollateral”. The Collateral Agent agrees, upon request by the Amended and Restated Tax Indemnity Agreement is not being assigned to Lender as collateral and is not being transferred to Borrower and at the Borrower’s expenseall liability thereunder will remain with Prime Group Realty, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.L.P.
Appears in 2 contracts
Samples: Loan Agreement (Prime Group Realty Trust), Loan Agreement (Prime Group Realty Trust)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor's right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in in, or to or under which such Grantor now has or at any time in the future hereafter may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperMoney and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property (and all embodiments, additions, improvements and accessions to or fixations thereof) and Licenses;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of titleother Goods, customs receiptsincluding all timber to be cut located on the real property specifically described on Schedule V, insurance certificates, shipping documents and other written materials related as such schedule may be supplemented from time to the purchase or import of any Inventorytime pursuant to Section 4.02(f);
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims specifically described on Schedule IV, as such schedule may be supplemented from time to time pursuant to Section 4.02(e);
(xiii) all Records and all books and records pertaining to the Collateral;
Article 9 Collateral (xiv) including, for the avoidance of doubt, all letters of credit under which such Grantor is the beneficiary books and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash records and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held related documentation describing or used in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorconnection with Intellectual Property); and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; Notwithstanding anything herein to the contrary, to the extent and for so long as any asset is an Excluded Asset, the Security Interest granted under this Section shall not attach to, and Article 9 Collateral shall not include, such asset (it being understood that the Security Interest shall immediately attach to, and Article 9 Collateral shall immediately include, any such asset (or any portion thereof) upon such asset (or such portion thereof) ceasing to be an Excluded Asset), and none of the representations, warranties or covenants hereunder shall be deemed to apply to any property constituting Excluded Assets.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture and timber filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail and indicating that after acquired assets are covered, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filingfiling or covering Collateral constituting timber to be cut, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting perfecting the Security Interest granted by each Grantor in Article 0 Xxxxxxxxxx xxxxxxxxxx xx Xxxxxx Xxxxxx Patents, Trademarks, Copyrights or exclusive Copyright Licenses granted to a Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Credit Agreement (Bz Intermediate Holdings LLC), Guarantee and Collateral Agreement (Bz Intermediate Holdings LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligationsSecured Obligations, and subject to Section 4.01(d), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in in, to or under which such Grantor now has or at any time in the future hereafter may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims described on Schedule IV, as such schedule may be supplemented from time to time pursuant to Section 4.02(e);
(xiii) all Records and Fixtures;
(xiv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, effect or of a lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filingfiling or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide the information required for any such information filing to the Collateral Agent promptly upon written request. Each Grantor also ratifies its authorization for the Collateral Agent (or its designee) to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dor its designee) The Collateral Agent is further authorized by each Grantor to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each such Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in .
(d) Notwithstanding anything herein to the contrary, to the extent and for so long as any asset is an Excluded Asset, the Security Interest granted under this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement Section 4.01 shall not be construed as creating a partnership or joint venture among attach to, and the Article 9 Collateral Agentshall not include, such asset; provided, however that the Security Interest shall immediately attach to, and the Article 9 Collateral shall immediately include, any other Secured Party, any Grantor and/or any other Personsuch asset (or portion thereof) upon such asset (or such portion) ceasing to be an Excluded Asset.
Appears in 2 contracts
Samples: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, (b) any assets (including Equity Interests) with respect to which the Collateral and Guarantee Requirement or the other Senior Secured Note Documentparagraphs of Section 5.10 of the Credit Agreement need not be satisfied by reason of Section 5.10(h) of the Credit Agreement, the (c) any assets (including Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Interests) to the extent that that, as of the Closing Date, and for so long as, such grant of a security interest would violate a contractual obligation binding on such asset, (d) any Equity Interests of any person acquired by a Guarantor after the Closing Date pursuant to Section 6.04(j) of the Credit Agreement if, and to the extent that, and for so long as, (A) such grant of a security interest would violate applicable law or any contractual obligation binding upon such Equity Interests and other securities can secure (B) such law or obligation existed at the Senior Secured Notes and/or time of the guarantees acquisition thereof and was not created or made binding upon such Equity Interests in respect thereof without Rule 3-10 contemplation of or Rule 3-16 of Regulation S-X under in connection with the Securities Act (or any other law, rule or regulation) requiring separate financial statements acquisition of such subsidiary to be filed with Subsidiary (provided, that the SEC foregoing clause (B) shall not apply in the case of a joint venture, including a joint venture that is a Subsidiary) or (e) any other governmental agency). In the event that Rule 3-10 or Rule 3-16 Letter of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Credit Rights to the extent necessary any Guarantor is required by applicable law to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, apply the Security Documents may be amended or modified, without the consent proceeds of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements a drawing of such subsidiary, then the Equity Interests and other securities Letter of such subsidiary shall automatically be deemed to be Credit for a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsspecified purpose.
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as "all assets" or "all property". Each Grantor Guarantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (TRW Automotive Inc), Guarantee and Collateral Agreement (TRW Automotive Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Guaranteed Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest (other than the grant of security interest in the Pledged Stock pursuant to Section 3.01) in, and "Article 9 Collateral" shall not include, (a) any Equity Interests of any Person (except for Equity Interests of any Material Subsidiary listed on Schedule VI hereto as such schedule may be updated from time to time, that can be perfected upon the filing of a financing statement), (b) any Material Pledged Debt Securities or any other Senior Secured Note Document, the Equity Interests and other debt securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, pledged pursuant to any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with foreign pledge agreement under the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 , (c) any assets of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Subsidiary to the extent necessary that, as of the Closing Date, and for so long as, a pledge of such assets would violate a contractual obligation binding on such assets or such Subsidiary, (d) any assets of any Subsidiary acquired after the Closing Date in accordance with the Credit Agreement if, and to not be subject the extent that, and for so long as (1) pledging such assets would violate applicable law or a contractual obligation binding on such assets or such Subsidiary and (2) such law or obligation existed at the time of the acquisition thereof or (e) any United States intent-to-use trademark applications to any such financial statement requirement). In such eventthe extent that, and solely during the period in which, the Security Documents may be amended grant of a security interest therein would impair the validity or modifiedenforceability of such intent-to-use trademark applications under applicable federal law; provided, without that, upon the consent reasonable request of the Note Trustee, the Collateral Agent, Domestic Borrower shall, and shall cause any Senior Secured Note Holder applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (c) and (d) above, other than those set forth in a joint venture agreement to which Holdings or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsSubsidiary is a party .
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) ), continuation statements, or other filings and recordings, with respect to the Article 9 Collateral and any other collateral pledged hereunder or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, or such other information as may be required under applicable law including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filingFixtures, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral or other collateral granted under this Agreement, including describing such property as "all assets" or "all property". Each Grantor Guarantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Domestic Guarantee and Collateral Agreement (Dresser-Rand Group Inc.), Domestic Guarantee and Collateral Agreement (Dresser-Rand Group Inc.)
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (Aggregate Principal and all Interest in respect of the Loans and all other than contingent obligations)Borrower Obligations, each Grantor the Borrower hereby confirms and reaffirms the pledge grant under the Existing Purchase Agreement, and grant without limiting the foregoing, hereby grants, to the Collateral Agent, Agent for its successors benefit and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured PartiesParties of, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in all of the Borrower’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “Collateral”):
): all of the Borrower’s right, title, and interest now or hereafter existing in, to and under the following of the Borrower’s assets, whether now owned or existing or hereafter acquired, and wherever located (iwhether or not in the possession or control of the Borrower), and all proceeds of the foregoing: (I) all Accounts;
Receivables comprising the Receivable Pool; (iiII) the Cash Collateral Account Related Assets in respect of the Receivable Pool; (as defined III) the Collections in respect of the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
Receivable Pool; (iiiIV) all Chattel Paper;
Transaction Documents; (ivV) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials Contracts related to the purchase or import Receivable Pool; (VI) the Sale Agreement and each Hedge Agreement and, in each case, all rights and remedies of any Inventory;
the Borrower thereunder; (xVII) all Investment Property;
other assets in the Receivable Pool and Related Assets; (xiVIII) each Collection Account and the Payment Account; (IX) all Intellectual Property;
accounts, chattel paper, commercial tort claims, deposit accounts, documents, fixtures, general intangibles (xiiincluding payment intangibles), goods (including equipment and inventory), instruments, investment property, letter-of-credit rights, letters of credit, money, as-extracted collateral, oil, gas and other minerals before extraction, software, supporting obligations, insurance policies and things in action; (X) all Pledged Collateral;
(xiii) all Records rights, interests, remedies, and all books and records pertaining privileges of the Borrower relating to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing including the right to sue for past, present, or future infringement of any or all of the foregoing;
; and (xviii) all other personal property whatsoever of such Grantor; and
(xixXI) to the extent not otherwise included, all Proceedsproducts and Proceeds (the terms in clauses (I) through (XI) not otherwise defined in this Agreement, as defined in the UCC) of the foregoing clauses (I) through (X) and all accessions to and to, substitutions and replacements for for, and rents, profits, and products of any and all the of the foregoing (including insurance proceeds), and all offspringsdistributions (whether in money, rents profits securities, or other property) and products of any of the foregoing and all collateral security and guarantees given by any person collections from or with respect to any of the foregoing.
(b) Notwithstanding anything The parties hereto agree that this Agreement is not intended to constitute a novation or a termination of the obligations under the Existing Purchase Agreement and that the security interest created pursuant to the contrary in this Existing Purchase Agreement or any other Senior Secured Note Document, the Equity Interests is hereby confirmed and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only is intended to the extent that such Equity Interests continue and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Borrower Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make which amends and restates the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonExisting Purchase Agreement.
Appears in 2 contracts
Samples: Receivables Financing Agreement (ADT Inc.), Receivables Financing Agreement (ADT Inc.)
Security Interest. (a) As collateral security for the payment or performance, as the case may be, in full when due of the Obligations (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge mortgages, pledges, hypothecates, grants, assigns and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants transfers to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a lien on and a first priority security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged books and records pertaining to the Article 9 Collateral;
(xiii) all Records Goods (including, without limitation, Fixtures) and all books and records pertaining to the Collateralother personal property not otherwise described above;
(xiv) all letters the non-exclusive cable franchise referred to in that certain Decision and Order No. 352 issued by the Department of credit under which such Grantor is the beneficiary Commerce and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any Consumer Affairs of the foregoing;
(xviii) all other personal property whatsoever State of such GrantorHawaii, dated June 24, 2011; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary foregoing, no security interest shall be granted in this Agreement (i) any FCC License or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Intellectual Property to the extent that such Equity Interests and the Communications Act or other securities can secure applicable law prohibits the Senior Secured Notes and/or granting of a security interest therein or the guarantees grant of a security interest therein could result in respect thereof without Rule 3-10 the cancellation, voidance or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements invalidity of such subsidiary to be filed with the SEC Intellectual Property, (ii) any contract, General Intangible, Copyright License, Patent License or any other governmental agencyTrademark License (“Intangible Assets”). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only each case to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted grant by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each relevant Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property security interest pursuant to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnershipin such Grantor’s right, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to title and interest in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.such
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Hawaiian Telcom Holdco, Inc.), Credit Agreement (Hawaiian Telcom Holdco, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Secured Obligations, including each Guarantee of the Secured Obligations (other than contingent obligations)made pursuant to Article 10 of the Indenture, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired directly owned by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all InstrumentsIntellectual Property, including all Pledged Securitiesclaims for, and rights to xxx for, past or future infringements of Intellectual Property, and all income, royalties, damages and payments now or hereafter due or payable with respect to Intellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Goods;
(x) all Instruments;
(xi) all Inventory;
(xxii) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xv) all Supporting Obligations;Money; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in (and the terms “Collateral” and “Article 9 Collateral” shall not include) any other Senior Secured Note DocumentExcluded Assets.
(b) The Issuer agrees to prepare and file such financing statements in any relevant jurisdiction as are necessary to establish and maintain a valid, enforceable and perfected security interest in the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Collateral. Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time time, but without obligation, to file in any relevant jurisdiction any financing statements (including fixture filingsFixture filings with respect to any Fixtures associated with Material Real Property that is subject to a Mortgage) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assetsassets of the Debtor, whether now owned or hereafter acquired” of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture Fixture filing, a sufficient description of the real property Material Real Property subject to a Mortgage to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Issuer shall provide reasonable written notice to the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of all such filings made by it on or about the date hereof, and, reasonably promptly thereafter, the Issuer and the Collateral Agent, as applicable, shall provide reasonable written notice to the Borrowerother party of any subsequent filings or amendments, supplements or terminations of existing filings, made from time to time thereafter and, in each case, shall provide to such other party file-stamped copies thereof within a reasonable time following receipt thereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Pledge and Security Agreement (CF Industries Holdings, Inc.), Pledge and Security Agreement (CF Industries Holdings, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligationsand, to the extent provided in Section 6.01, the Existing Senior Note Obligations), each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the First-Lien Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesParties (and, to the extent provided in Section 6.01, for the equal and ratable benefit of the Existing Senior Note Holders), and hereby grants to the First-Lien Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties (and, to the extent provided in Section 6.01, for the equal and ratable benefit of the Existing Senior Note Holders), a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel PaperCommercial Tort Claims;
(iv) all DocumentsChattel Paper;
(v) all Documents;
(vi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ixx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xixii) all Intellectual Property;
(xiixiii) all Letter-of-Credit Rights;
(xiv) all Pledged Collateral;
(xiiixv) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xvxvi) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. Notwithstanding the foregoing, Collateral shall include cash, cash equivalents and securities to the extent the same constitute Proceeds and products of any item set forth in clauses (i) through (xvii) above, but in no event shall any control agreements be required to be obtained in respect thereof.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the First-Lien Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the First-Lien Collateral Agent promptly upon written request. The First-Lien Collateral Agent agrees, upon request by the US Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the US Borrower.
(dc) The First-Lien Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the First-Lien Collateral Agent as secured party. The First-Lien Collateral Agent agrees, upon request by the US Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the US Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the First-Lien Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the First-Lien Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the First-Lien Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the First-Lien Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the First-Lien Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: First Lien Guarantee and Collateral Agreement (Univision Holdings, Inc.), Credit Agreement (Univision Communications Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Deposit Accounts and Securities Accounts;
(d) all Commercial Tort Claims;
(e) all Documents;
(vf) all Equipment;
(vig) all General Intangibles;
(viih) all GoodsInstruments;
(viiii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xj) all Investment Property;
(xik) all Intellectual PropertyLetter-of-Credit Rights;
(xiil) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixm) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. Notwithstanding the foregoing, the Article 9 Collateral shall not include any of the following assets now owned or hereafter acquired which would otherwise be included in the Article 9 Collateral (collectively, the “Excluded Collateral”):
(a) any vehicle covered by a certificate of title or ownership,
(b) any real property held by the Borrower or any Guarantor as a lessee under a lease,
(c) assets sold to a Person which is not a Grantor in compliance with each of the Credit Agreements,
(d) assets owned by a Guarantor after the release of the guarantee of such Guarantor pursuant to Section 7.15,
(e) assets subject to a Lien permitted by clauses (g), (h), (i) and (r) (in the case of a Lien permitted by clause (r), securing Indebtedness permitted to be incurred pursuant to clauses (7) and (15) of the definition of “Permitted Indebtedness” set forth in each of the Credit Agreements) of the definition of “Permitted Liens” set forth in each of the Credit Agreements,
(f) assets which contain a valid and enforceable prohibition on the creation of a security interest therein so long as such prohibition remains in effect and is valid and effective notwithstanding Sections 9-406, 9-407, 9-408 and 9-409 of the applicable Uniform Commercial Code; provided that, upon the reasonable request of the Agent, the Borrower shall, and shall cause any applicable Grantor to, use commercially reasonable efforts to have waived or eliminated such provision,
(g) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01(a) hereof,
(h) any Letter-of-Credit Rights to the extent any Grantor is required by applicable law to apply the proceeds of a drawing of such letter of credit for a specified purpose and to a person that is not a Grantor,
(i) any asset of a Controlled Foreign Subsidiary (within the meaning of Treasury Regulation § 1.956-2(c)(2) or any successor provision thereto) or a subsidiary of a Controlled Foreign Subsidiary, and
(j) any application for a Trademark registration filed with the United States Patent and Trademark Office pursuant to Section 1(b) of the Xxxxxx Act (“Intent to Use Application”) prior to the filing with and acceptance by the United States Patent and Trademark Office of a Statement of Use (as described in Section 1(d) of the Xxxxxx Act) or an Amendment to Allege Use (as described in Section 1(c) of the Xxxxxx Act).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” assets of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (TransDigm Group INC), Guarantee and Collateral Agreement (TransDigm Group INC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all books and records pertaining to the Article 9 Collateral;
(xi) all Fixtures;
(xii) all Letter-of-Credit Rights, but only to the extent constituting a supporting obligation for other Article 9 Collateral as to which perfection of security interests in such Article 9 Collateral is accomplished by the filing of a UCC financing statement;
(xiii) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is Commercial Tort Claims listed on Schedule III and on any supplement thereto received by the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorCollateral Agent pursuant to Section 3.03(g); and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Assets.
(b) Subject to Section 3.01(e), the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Security Agreement (Hilton Worldwide Holdings Inc.), Security Agreement (APX Group Holdings, Inc.)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Cash Equivalents and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all Goods
(h) all Instruments;
(viiii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xj) all Investment Property;
(xik) all Letter of Credit Rights;
(l) all Intellectual Property;
(xiim) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiin) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsSecurity Entitlements in respect thereof;
(xv) all Supporting Obligations;
(xviiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in any Securities Account or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorDeposit Account; and
(xixiv) all other Money in the possession of the Collateral Agent;
(o) all books and Records pertaining to the extent not otherwise includedArticle 9 Collateral; and
(p) all proceeds, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, the Equity Interests Article 9 Collateral will not include, this Agreement will not constitute a grant of a security interest in and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agentattach to, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor;
(yb) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates; and
(c) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of similar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.any
Appears in 2 contracts
Samples: Term Loan Guarantee and Collateral Agreement (PET Acquisition LLC), Term Loan Guarantee and Collateral Agreement (PET Acquisition LLC)
Security Interest. (a) As collateral security for the payment Secured Obligations, including any and all renewals or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)extensions thereof, each Grantor Pledgor hereby confirms the pledge delivers, pledges, transfers and grant collaterally assigns to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges Pledgee and grants to the Collateral Agent, its successors and permitted assignsPledgee, for the ratable benefit of the Secured Parties, a first priority security interest in all of such Pledgor’s right, title or and interest in or and to any and all of the following assets and properties in each case whether tangible or intangiblePledged Shares (including, wherever locatedwithout limitation, the Pledged Shares described on Schedule I hereto), and all other Equity Interests of any kind or nature of all existing and future Subsidiaries of such Pledgor, now owned or at any hereafter acquired, whether such Equity Interests are certificated or uncertificated, and each of the notes, capital stock, and all other investment property, financial assets and general intangibles of such Pledgor related to the foregoing, including, without limitation, and subject to Section 7(b), the right to vote such Equity Interests, now owned, legally, beneficially or hereafter acquired, together with all proceeds of and additions to such Equity Interests from time hereafter acquired by such Grantor to time received, receivable or otherwise distributed in respect of or in which such Grantor now has exchange for any or at any time in all of the future may acquire any rightforegoing, title including all dividends, interest distributions, cash, warrants, rights, instruments and other property, except for cash dividends or interest (but excluding other cash distributions to the extent permitted under Section 7(a); provided, however, that notwithstanding anything herein to the contrary, no Loan Party shall be required to pledge Equity Interests of any Excluded CollateralSubsidiary, to the extent such Equity Interests carry more than 65% of the total combined voting power of any “first-tier” Excluded Subsidiary (as determined for purposes of Treasury Regulations Section 1.956-2(c)) unless such Excluded Subsidiary has guaranteed Indebtedness of the Borrower or any of its Domestic Subsidiaries or pledged any of its assets or suffered a pledge of a greater percentage of its Equity Interests to secure Indebtedness of the Borrower or any of its Domestic Subsidiaries (collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Pledge Agreement (Cambium Learning Group, Inc.), Pledge Agreement (Cambium Learning Group, Inc.)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Cash Equivalents and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all Goods
(h) all Instruments;
(viiii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xj) all Investment Property;
(xik) all Letter of Credit Rights;
(l) all Intellectual Property;
(xiim) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiin) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsSecurity Entitlements in respect thereof;
(xv) all Supporting Obligations;
(xviiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in any Securities Account or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorDeposit Account; and
(xixiv) all other Money in the possession of the Collateral Agent;
(o) all books and Records pertaining to the extent not otherwise includedArticle 9 Collateral; and
(p) all proceeds, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, the Equity Interests Article 9 Collateral will not include, this Agreement will not constitute a grant of a security interest in and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject attach to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor;
(yb) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates; and
(c) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of similar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Abl Guarantee and Collateral Agreement (PET Acquisition LLC), Abl Guarantee and Collateral Agreement (PET Acquisition LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranteed Obligations, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ixx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note Document, Excluded Asset.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Pledge and Security Agreement, Pledge and Security Agreement (Sabre Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all Goods;
(viiix) all Instruments, including all Pledged Securities;
(ixxi) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting ObligationsLetters of Credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorMoney; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset or any other Senior Secured Note Document, Excluded Security.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Pledge and Security Agreement (VPNet Technologies, Inc.), Pledge and Security Agreement (VPNet Technologies, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property Collateral;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral; (xi) all Goods and Fixtures;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule 8 of the Perfection Certificate;
(xiv) all letters of credit under which such Grantor is Money, cash, cash equivalents, Deposit Accounts and the beneficiary Cash Collateral Account (and Letter of Credit Rightsall cash, securities and other investments deposited therein);
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit Security Entitlements in any or all of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note DocumentAgreement, the Equity Interests Article 9 Collateral shall not include any, and other securities of any direct or indirect subsidiary of Holdings that are owned by any no Security Interest shall be granted in any, Excluded Assets.
(b) Subject to Section 3.03(h), each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement, continuation statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number (if any) issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Security Agreement (Casa Systems Inc), Security Agreement (Casa Systems Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral AgentTrustee, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral AgentTrustee, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in and continuing lien on (the “Security Interest”) all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesIntangibles (except to the extent constituting Pledged Collateral pledged pursuant to Article III) and Intellectual Property;
(vii) all GoodsInstruments (except to the extent constituting Pledged Collateral pledged pursuant to Article III);
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related Investment Property (except to the purchase or import of any Inventoryextent constituting Pledged Collateral pledged pursuant to Article III);
(x) all Investment PropertyLetter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims from time to time specifically described on a Perfection Certificate or pursuant to Section 4.04(f);
(xii) all Pledged CollateralInsurance;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing. Notwithstanding anything herein to the contrary, in no event shall the Article 9 Collateral include nor the security interest granted under this Section 4.01 attach to: (i) any lease, license, contract or agreement to which any Grantor is a party, and any of its rights or interest thereunder, if and to the extent that a security interest in any such lease, license, contract or agreement is prohibited by or in violation (including a breach or default thereunder) of (A) any law, rule or regulation applicable to such Grantor, or (B) a term, provision or condition of any such lease, license, contract or agreement (unless such 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 Uniform Commercial Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code of the United States of America) or principles of equity); provided however that the Article 9 Collateral shall include (and such security interest shall attach) immediately at such time as the contractual or legal prohibition referred to above shall no longer be applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract or agreement not subject to the prohibitions specified in (A) or (B) above; provided further that the prohibitions specified in (A) or (B) above shall not include any Proceeds of any such lease, license, contract or agreement, (ii) 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, (iii) Margin Stock, (iv) motor vehicles, rolling stock, aircraft and vessels, (v) all leasehold interests, (vi) any Excluded Accounts, (vii) any asset owned by any Grantor on the date hereof or hereafter acquired that is subject to a Lien permitted by Sections 6.02(a), 6.02(h), 6.02(r), 6.02(s) or 6.02(t) of the Credit Agreement but only to the extent that the contract or written agreement governing such permitted Lien or the permitted debt secured thereby expressly prohibits the grant of a Lien or a security interest on such asset but, in any case, only for so long as and to the extent that such prohibition remains in place, (viii) those assets (if any) as to which the Collateral Trustee and the Borrower shall have determined that the cost of obtaining a security interest is excessive in relation to the value of the security to be afforded thereby, (ix) any Equity Interest of any Subsidiary or any Person that is not a Subsidiary to the extent a pledge of such Equity Interest hereunder is expressly prohibited by any applicable shareholder agreement, indenture or other contractual arrangement either (x) in force and effect on the Closing Date or (y) entered into after the Closing Date but only if the applicable Grantor has used commercially reasonable efforts to ensure that such shareholder agreement, indenture or other contractual arrangement does not restrict the ability of the applicable Grantor to grant hereunder a Lien on or security interest in such Equity Interest, in any case only for so long as and to the extent that such prohibition remains in place and (x) any asset released by the Collateral Trustee from the Liens created hereby pursuant to Section 5.1 of the Intercreditor Agreement as and to the extent set forth therein (the interests, property and assets in the immediately foregoing clauses (i) through (x), the “Excluded Assets”).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent Trustee at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) describe the Article 9 Collateral as described herein or in any other manner as the Collateral Trustee may determine, in its reasonable discretion, is reasonably necessary, advisable or prudent to ensure the perfection of the Security Interest granted herein, (ii) indicate the Article 9 Collateral as “all assets, whether now owned or hereafter acquired, developed or created” of such Grantor or words of similar effect, and (iiiii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Dynegy Inc.), Guarantee and Collateral Agreement (Dynegy Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge grants and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles; provided that the grant of the Security Interest hereunder shall not include any application for a Trademark that would be deemed invalidated, canceled or abandoned due to the grant and/or enforcement of such Security Interest unless and until such time that the grant and/or enforcement of the Security Interest will not affect the status or validity of such Trademark;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-credit rights;
(xi) all Intellectual Propertycommercial tort claims;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing; provided that the foregoing shall not include any asset that such Grantor now has or at any time in the future may acquire the right, title or interest of which is (i) the subject of a capital lease (as determined in accordance with GAAP) and (ii) legally or beneficially owned by a person other than a Grantor.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Credit Agreement (Ryan's Restaurant Leasing Company, LLC), Guarantee and Collateral Agreement (Ryan's Restaurant Leasing Company, LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant pledges, assigns, to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel PaperCommercial Tort Claims;
(iv) all DocumentsChattel Paper;
(v) all Documents;
(vi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ixx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xixii) all Intellectual Property;
(xiixiii) all Pledged Collateral;
(xiiixiv) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing. Notwithstanding the foregoing, the Security Interest shall not extend to, and the “Collateral” (and any component definition thereof) shall not include, any Excluded Property.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any the organizational identification number issued to such Grantor if required for the filing of financing statements in any relevant jurisdiction and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
(e) Notwithstanding anything to the contrary herein, no action shall be required to create or perfect a security interest in the Collateral to the extent such creation or perfection would require (i) any filing other than a filing in the United States of America, any state thereof and the District of Columbia, (ii) other actions under the laws of any jurisdiction other than the United States of America, any state thereof and the District of Columbia or (iii) that any control agreements be obtained in respect thereof.
Appears in 2 contracts
Samples: Credit Agreement (Ceridian HCM Holding Inc.), Credit Agreement (Ceridian HCM Holding Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) Buyer and Sellers intend that all Transactions hereunder be sales to Buyer of the Loan Obligations Purchased Loans for all purposes (other than contingent obligations)for accounting and U.S. Federal, state and local income or franchise Tax purposes) and not loans from Buyer to Sellers secured by the Purchased Loans. Notwithstanding the foregoing, in order to preserve Buyer’s rights under this Agreement and the other Transaction Documents (i) in the event that a court or other forum recharacterizes the Transactions hereunder as other than sales, and (ii) irrespective of any recharacterization determination, as security for both its performance and for the performance of the other Seller of all Obligations hereunder and under the Transaction Documents, each Grantor Seller hereby confirms the pledge grants Buyer and grant to the Collateral Repo Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, Buyer and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Repo Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all of such Seller’s right, title or and interest in or in, to any and all of the following assets and properties under, in each case case, whether tangible or intangible, wherever located, and now owned or at any time existing, or hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
arising: (i) all Accounts;
of the Purchased Loans, inclusive of any related Advances (including, for the avoidance of doubt, all security interests, mortgages and liens on personal or real property securing the Purchased Loans, inclusive of any related Advances), (ii) the Cash Collateral Purchased Loan Documents and all Records, (iii) all related Servicing Rights and Servicing Records, (iv) each Collection Account and all amounts and property from time to time on deposit therein, (v) the Remittance Account and all amounts and property from time to time on deposit therein, (vi) all Income from the Purchased Loans, inclusive of any related Advances, (vii) each deposit account established in connection with the Purchased Loans for the benefit of any Relevant Party pursuant to the related Servicing Agreements, (viii) all mortgage guarantees and insurance policies relating to any Purchased Loan or the related Mortgaged Property, and all proceeds thereunder, (ix) all “general intangibles”, “accounts” and “chattel paper” as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited UCC relating to or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of constituting any and all of the foregoing items set forth in clauses (i) through (viii) above, (x) all replacements, substitutions or distributions on or proceeds, payments, cash, and profits of, and records and files relating to, any and all offsprings, rents profits and products of any of the foregoing items set forth in clauses (i) through (ix) above, (xi) the Disbursement Account established by the Disbursement Agent and Account Control Agreement, dated as of the Closing Date, among Sellers, Buyer and U.S. Bank National Association as Disbursement Agent, and all collateral security amounts and guarantees given by property from time to time on deposit therein and (xii) any person other property, rights, titles or interests as are specified in a Confirmation, Trust Receipt, the Purchased Loan Schedule or Exception Report, in all instances whether now owned or hereafter acquired, now existing or hereafter created, and wherever located (collectively, the items set forth in clauses (i) through (xii) above, the “Repurchase Assets”). Each Seller hereby acknowledges and agrees that its rights with respect to the Repurchase Assets (including, without limitation, any security interest it may have in the Purchased Loans and any other collateral granted to such Seller pursuant to any other agreement) are and shall continue to be at all times junior and subordinate to the rights of Buyer and Repo Agent hereunder and under the foregoingother Transaction Documents.
(b) Notwithstanding anything With respect to the contrary security interest in the Repurchase Assets granted in Section 6(a), Buyer and Repo Agent shall have all of the rights and may exercise all of the remedies of a secured creditor under the UCC and any other applicable law and shall have the right to apply the Repurchase Assets, or proceeds therefrom to the Obligations of each Seller under this Agreement or any and the other Senior Secured Note DocumentTransaction Documents. In furtherance of the foregoing, (i) Repo Agent, at the Equity Interests applicable Seller’s sole cost and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other lawexpense, rule or regulation) requiring separate financial statements of such subsidiary shall cause to be filed as a protective filing with respect to the Repurchase Assets and as a UCC filing with respect to the security interests granted in Section 6(c) one or more UCC financing statements in form satisfactory to Repo Agent (to be filed in the filing office indicated therein), in such locations as may be necessary to perfect and maintain perfection and priority of the outright transfer and the security interest granted hereby and, in each case, continuation statements and any amendments thereto (collectively, the “Filings”), and shall forward copies of such Filings to each Seller upon completion thereof, and (ii) each Seller shall, from time to time, at its own expense, deliver and cause to be duly filed all such further filings, instruments and documents and take all such further actions as may be necessary or desirable or as may be reasonably requested by Buyer to maintain and continue the perfection and priority of the outright transfer of the Purchased Loans and the security interest granted hereunder in the Repurchase Assets and the rights and remedies of Buyer and Repo Agent with respect to the Repurchase Assets (including the payments of any fees and Taxes required in connection with the SEC (or any other governmental agencyexecution and delivery of this Agreement). In the event that Rule 3-10 Each Seller hereby authorizes Repo Agent to file or Rule 3-16 of Regulation S-X under the Securities Act requires cause to be filed such financing statement or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due relating to the fact that such subsidiary’s Equity Interests Repurchase Assets and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests all proceeds thereof and other securities any Servicing Rights of such subsidiary shall automatically be deemed not to be part Seller and the proceeds related thereto (including a financing statement describing the collateral as “all assets of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirementSeller, whether now owned or hereafter acquired or arising, wherever located, together with all accessions thereto and proceeds thereof” or such other super-generic description thereof as Repo Agent may determine) (any without such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Seller’s signature thereon as Repo Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligationsat its option, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. may deem appropriate.
(c) For the avoidance of doubt, any such Equity Interests shall remain Collateral securing neither Seller retains economic rights to the Loan Obligations for the benefit servicing of the Loan Secured Parties in accordance with the terms of the Credit Agreement Servicing Released Purchased Loans and this Agreement. In the event related Mortgaged Properties; provided that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC each Seller shall and shall cause each Servicer to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities continue to secure the Senior Secured Notes and/or service the related guarantees Purchased Loans and Mortgaged Properties hereunder as part of its Obligations hereunder. As such, each Seller expressly acknowledges that the Servicing Retained Purchased Loans and related Mortgaged Properties are sold to Buyer on a “servicing retained” basis and the Servicing Released Purchased Loans and related Mortgaged Properties are sold to buyer on a “servicing released” basis, as applicable, and each Seller hereby grants, assigns and pledges to Buyer and Repo Agent a security interest in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements Servicing Rights of such subsidiarySeller and all proceeds related thereto and in all instances, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended whether now owned or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder existing or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral hereafter acquired or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerarising.
(d) The Collateral Agent is further authorized pledges set forth in clauses (a) and (c) are intended to file with the United States Patent constitute security agreements or other arrangements or other credit enhancements related to this Agreement and Trademark Office or United States Copyright Office (or any successor officeTransactions hereunder as defined under Sections 101(47)(A)(v) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e741(7)(xi) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonBankruptcy Code.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Angel Oak Mortgage, Inc.), Master Repurchase Agreement (Angel Oak Mortgage, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cashChattel Paper, securities, Instruments and other property deposited or required to be deposited thereinincluding all Electronic Chattel Paper;
(iii) all Chattel PaperCommercial Tort Claims (including all Commercial Tort Claims listed on Schedule IV);
(iv) all Documentscash, Deposit Accounts and all other bank accounts;
(v) all EquipmentDocuments;
(vi) all General Intangibles, including Intellectual Property;
(vii) all Goods;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryEquipment;
(x) all Fixtures;
(xi) all Instruments;
(xii) all Investment Property;
(xixiii) all Intellectual PropertyLetter-of-Credit Rights;
(xiixiv) all Pledged Collateralmonies, whether or not in the possession or under the control of any Secured Party, or a bailee or Affiliate or branch of any Secured Party, including any cash;
(xiiixv) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of of, and all Supporting Obligations for, any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding the above or anything to the contrary else in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note TrusteeAgreement, the Collateral Agent, shall not include any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Assets.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent for the benefit of the Secured Parties at any time and from time to time to file in any relevant jurisdiction any initial financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Credit Agreement (Oscar Health, Inc.), Credit Agreement (Oscar Health, Inc.)
Security Interest. (a) As The Issuer hereby pledges, assigns and grants to the Trustee, as security for the due payment or performanceand performance of all the Issuer’s obligations under this Indenture for all series of Outstanding Securities, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge for itself and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) Holders of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Partiessuch Securities, a security interest in and to all of the Issuer’s right, title and interest, whether now or interest hereafter existing or acquired, in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) ; all Deposit Accounts and all cash, securities, Instruments and other property deposited or required to be deposited funds on deposit therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) ; all cash and cash equivalents;
(xvii) ; all Deposit Accounts commodity contracts; all investments, Equity Interests and Securities AccountsInvestment Property; all Inventory; all Equipment; all Goods; all Chattel Paper; all Documents, including including, without limitation, all cash, marketable securities, securities entitlements, financial assets Issuer Loans and other funds held in or on deposit in any all of the foregoing;
Issuer’s right, title and interest thereunder; all Instruments; all Books and Records; all General Intangibles; all Supporting Obligations; all Letter-of-Credit Rights (xviii) all other personal property whatsoever of capitalized terms used in this paragraph shall have the meanings assigned to such Grantorterms in the UCC); and
(xixb) all proceeds of the foregoing. At the expense of the Issuer, the Issuer agrees to execute, deliver and file such further agreements, instruments and certificates as may be necessary to preserve, perfect and protect the title and interests of the Trustee on behalf of the Holders of all Outstanding Securities, including but not limited to, the filing of financing statements pursuant to the extent not otherwise includedUCC. The Issuer shall, all Proceedsat its expense, all accessions do any further acts and execute, acknowledge, deliver, file, register and record any further documents as are reasonably necessary in order to protect the Trustee’s title to and substitutions first priority perfected security interest in the Collateral, subject to no liens, encumbrances or charges of any type whatsoever. In furtherance of the grant of the security interest in the Collateral for all Outstanding Securities, upon and replacements for during continuance of an Event of Default, the Issuer grants to the Trustee on behalf of the Holders of such Securities the full, exclusive and products of irrevocable right, power and authority but not the obligation to exercise any and all rights of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Issuer with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations held for the benefit of the Loan Secured Parties in accordance with Holders of such Securities, and each contract, agreement or other document or instrument included therein. The Trustee agrees that, except upon the terms occurrence of and during the Credit Agreement and this Agreement. In continuance of an Event of Default, it shall not exercise the event that Rule 3-10 or Rule 3-16 power of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulationattorney, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only rights granted to the extent necessary Trustee pursuant to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This this Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations6.8.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Short Term Notes Indenture, Short Term Notes Indenture
Security Interest. (a) As security for the payment or performanceSubject to Section 3.04, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations)Obligations, each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or and interest in or and to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual PropertyLetter-of-Credit rights;
(xiix) all Pledged CollateralCommercial Tort Claims included in the Article 9 Collateral pursuant to Section 4.04;
(xiiixi) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including other than fixture filingsfilings or other filings required to be made in any real estate recording office) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement (other than a fixture filing or other filing required to be made in any real estate recording office) or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such file in any relevant jurisdiction any initial financing statements (other than fixture filings or other filings required to be made in any real estate recording office) or amendments thereto if filed prior to the Borrowerdate hereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interests granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything herein to the contrary, in this Agreement no event shall the security interest granted hereunder attach to (i) any contract or agreement to which a Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (A) the unenforceability of any right of the Grantor therein or (B) a breach or termination pursuant to the terms of, or a default under, any such contract or agreement (other than to the extent that any such term would be construed rendered ineffective pursuant to make Section 9-406, 9-407, 9-408 or 9-409 of the Collateral Agent New York UCC or any other Secured Party liable as a member applicable law or principles of equity), provided, however, with respect to any limited liability company contract or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue agreement described in clause (i) of this Agreement paragraph (d), that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or otherwise (except as referred to agreement that does not result in the following sentence) shall have any of the dutiesconsequences specified in subclauses (A) or (B) of this paragraph (d) including, obligations any Proceeds of such contract or liabilities agreement, (ii) more than 65% of a member the issued and outstanding voting Equity Interests of any limited liability company Foreign Subsidiary or as a partner (iii) any Excluded Property.
(e) Notwithstanding anything herein to the contrary, any Security Interest in any partnership. The parties hereto expressly agree that, unless Intellectual Property shall be subordinate to any license thereof (other than a license to a Loan Party) permitted under the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCredit Agreement.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Limited Brands Inc), Amendment and Restatement Agreement (Limited Brands Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all AccountsCopyrights;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinPatents;
(iii) all Chattel PaperTrademarks;
(iv) all DocumentsLicenses;
(v) all Equipment;other Intellectual Property; and
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Intellectual Property Security Agreement (Nielsen Holdings B.V.), Intellectual Property Security Agreement (Global Media USA, LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guaranty, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinDeposit Accounts;
(iii) all Chattel PaperInventory;
(iv) all Documentsto the extent evidencing, governing, securing or otherwise related to the items referred to in the foregoing, General Intangibles, Chattel Paper and Instruments;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
Collateral (xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held whether in printed form or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorstored electronically); and
(xixvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or any other Senior Secured Note Documentshall not constitute a grant of a security interest in, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agentinclude, any Senior Secured Note Holder Excluded Asset or any holder of Other Pari Passu Lien Obligations, to Term Loan Priority Collateral.
(b) Each Grantor hereby irrevocably authorizes the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor as described herein or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral.
(d) With respect to any Deposit Accounts that are Blocked Accounts pursuant to Section 6.15(b) of the Credit Agreement, each Grantor that is an account party for a Blocked Account shall execute and deliver Blocked Account Agreements in accordance with Section 6.15 of the Credit Agreement. Nothing contained in this The Agent hereby agrees that it shall not deliver any notifications to any account bank under any Blocked Account Agreement shall be construed to make the Collateral Agent or any other Secured Party liable until such time as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCash Dominion Event has occurred and is continuing.
Appears in 2 contracts
Samples: Pledge and Security Agreement (LVB Acquisition, Inc.), Pledge and Security Agreement (Biolectron, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents Goods and other written materials related to the purchase or import of any Inventory;
(x) all Investment PropertyProperty including the Pledged Collateral;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xvxii) all Supporting ObligationsCommercial Tort Claims as described on Schedule 10 to any Perfection Certificate;
(xvixiii) all cash books and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of records pertaining to the foregoing;
(xviii) all other personal property whatsoever of such GrantorArticle 9 Collateral; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) any of the following (collectively, “Excluded Property”): (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired to the extent the filing of a financing statement cannot perfect a security interest therein, (b) any Excluded Equity Interests, (c) any assets to the extent that, and for so long as, such grant of a security interest therein would violate applicable law or regulation or, in the case of assets acquired after the Closing Date, such grant of a security interest therein would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired after the Closing Date with Indebtedness of the type permitted pursuant to Section 6.01(i) of the Credit Agreement that is secured by a Permitted Lien) permitted by this Agreement, in each case, after giving effect to the Anti-Non-Assignment Clauses, (d) (1) any “intent to use” applications for trademark or service xxxx registrations filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, unless and until an accepted filing of an “Amendment to Allege Use” whereby such intent-to-use application is converted to a “use in commerce” application pursuant to Section 1(c) of the Xxxxxx Act or an accepted filing of a “Statement of Use” and issuance of a “Certificate of Registration” pursuant to Section 1(d) of Xxxxxx Act and (2) any other Intellectual Property in any jurisdiction where the grant of a security interest thereon would cause the invalidation or abandonment of such Intellectual Property under applicable law (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would violate the terms of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such license, contract or agreement to which such Pledgor is a party (other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3Anti-10 or Rule 3Non-16 of Regulation S-X under the Securities Act (Assignment Clauses or any other lawapplicable law or regulation (including Title 11 of the United States Code) or principles of equity); provided that, rule immediately upon the ineffectiveness, lapse or regulationtermination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (f) requiring separate financial statements of any Equipment or other asset owned by any Pledgor that is subject to a purchase money lien or a Capital Lease Obligation, in each case, as permitted by the Credit Agreement, if the contract or other agreement in which such subsidiary to be filed with the SEC Lien is granted (or the documentation providing for such Capital Lease Obligation) prohibits or requires the consent of any person other than a Pledgor or a Subsidiary of a Pledgor as a condition to the creation of any other governmental agency). In the event that Rule 3-10 security interest on such Equipment or Rule 3-16 of Regulation S-X under the Securities Act requires asset and, in each case, such prohibition or requirement is amended, modified or interpreted permitted by the SEC to require Credit Agreement, (or is replaced with another rule or regulation, or g) any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) Letter of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Credit Rights to the extent necessary any Pledgor is required by applicable law to not apply the proceeds of a drawing of such Letter of Credit for a specified purpose, and (h) those assets as to which the Borrower shall reasonably determine (and the Administrative Agent shall agree in writing) that such assets shall be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the excluded from Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, hereunder pursuant to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Agreed Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsPrinciples.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments or continuations thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent and to execute such financing statements promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and Each Pledgor agrees that at the Borrower’s expensesole cost and expense of the Pledgors, to promptly furnish copies of such filings Pledgor will maintain the security interest created by this Agreement in the Collateral as a perfected (to the Borrower.
(dextent required to be perfected under the Loan Documents) first priority security interest subject only to Permitted Liens and will file all UCC-3 continuation statements necessary to continue the perfection of the security interest created by this Agreement. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office, the Puerto Rico Trademark Office or and the United States Copyright Office (and any successor office or any successor officesimilar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing enforcing, protecting or protecting providing notices of the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Collateral Agreement (EVERTEC, Inc.), Collateral Agreement (EVERTEC, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and (4) all other money in the possession of the Administrative Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any other Senior Secured Note DocumentEquity Interests acquired after the Closing Date in a Person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation exited at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 6.01(i) of the Credit Agreement that is secured by a Permitted Lien), (c) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof (other securities than Section 3.01(a)(iv)), (d) any Letter of Credit Rights to the extent any direct Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or indirect subsidiary (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of Holdings its right, title or interest thereunder to the extent, but only to the extent, that are owned by such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only license, contract or agreement to which such Pledgor is a party (other than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Administrative Agent promptly upon written request, including providing within 30 days of any reasonable request therefor legal descriptions of real property (other than real property subject to a Mortgage) on which timber to be cut of such Pledgor is located. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Administrative Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Verso Sartell LLC), Guarantee and Collateral Agreement (Verso Paper Corp.)
Security Interest. (a) As a)As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including each Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all EquipmentGeneral Intangibles and Permits;
(vi) all General IntangiblesInstruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property Collateral;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xi) all Goods and Fixtures;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule III from time to time;
(xiv) the Cash Collateral Account (and all letters of credit under which such Grantor is the beneficiary cash, securities and Letter of Credit Rightsother investments deposited therein);
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit Security Entitlements in any or all of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.;
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsi) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectOwned Trademarks, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) applications in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office to register Owned Trademarks or United States Copyright Office (or any successor office) such documents as may be necessary for service marks on the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature basis of any Grantor’s “intent to use” such Owned Trademarks or service marks will not be deemed to be Collateral unless and until a “Statement of Use” or “Amendment to Allege Use” has been filed and accepted in the United States Patent and Trademark Office, whereupon such application shall be automatically subject to the security interest granted herein and naming any Grantor or the Grantors as debtors and deemed to be included in the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings (ii) that notwithstanding anything to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained contrary in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoAgreement, this Agreement shall not constitute a grant of a security interest in (A) motor vehicles or other assets subject to certificates of title the perfection of a security interest in which is excluded from the New York UCC in the relevant jurisdiction, (B) any Equity Interests other than Pledged Equity, (C) any Equipment that is subject to a purchase money lien or a capital lease permitted under the Credit Agreement to the extent the documents relating to such purchase money lien or capital lease validly prohibits such Equipment to be construed as creating subject to the Security Interest created hereby, (D) any specifically identified asset with respect to which the Administrative Agent has confirmed in writing to the Borrower its determination that the costs or other consequences (including adverse tax consequences) of providing a partnership security interest is excessive in view of the benefits to be obtained by the Lenders, (E) any General Intangible, Investment Property, Accounts, Intellectual Property Collateral, promissory notes, chattel paper, Permit or joint venture among other such rights of a Grantor arising under any contract, lease, instrument, license, or other document if (but only to the extent that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of, or result in the abandonment, invalidation or unenforceability of any right, title or interest of such Grantor in, such General Intangible, Investment Property, Accounts, Intellectual Property Collateral, promissory notes, chattel paper, Permit or other such rights in favor of a third party or under any law, regulation, permit, order, judgment or decree of any Governmental Authority and such contractual restriction is otherwise not restricted by the Credit Agreement, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such contract, lease, instrument, franchise, permit, license or other document relating to any such General Intangible, Investment Property, Intellectual Property Collateral, Accounts, promissory notes, chattel paper, Permit or other such rights of a Grantor or give any other party the right to terminate its obligations or such Grantor’s rights under such contract, lease, instrument, franchise, permit, license or other document (whether expressly in such document or otherwise under applicable law) to the extent that such right is not restricted by the Credit Agreement, provided however, that the limitation set forth in clause (E)above shall not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the New York UCC and provided further that the Proceeds from any such contract, lease, instrument or other document shall not be excluded from the definition of Article 9 Collateral or (G) Margin Stock unless the applicable requirements of Regulations T, U, and X of the Board of Governors of the Federal Reserve have been satisfied. Each Grantor shall, if requested to do so by the Administrative Agent, use commercially reasonable efforts to obtain any other Secured Party, any Grantor and/or any other Personsuch required consent that is reasonably obtainable with respect to Collateral which the Administrative Agent reasonably determines to be material.
Appears in 2 contracts
Samples: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Osi Restaurant Partners, LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Obligor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Obligor or in which such Grantor Obligor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAs-Extracted Collateral;
(iii) all Chattel Paper;
(iv) all Documentscash and Deposit Accounts;
(v) all EquipmentDocuments;
(vi) all General IntangiblesEquipment and Goods;
(vii) all GoodsFixtures;
(viii) all Instruments, including all Pledged SecuritiesGeneral Intangibles and Intellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Instruments;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights;
(xiii) all Records and Commercial Tort Claims described with specification on Schedule V hereto (as such Schedule may be amended or supplemented from time to time);
(xiv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing; provided, however, that the foregoing assignment, pledge and grant of a security interest shall be deemed not to assign, pledge and grant a security interest in (a) any Letter of Credit Rights to the extent any Obligor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (b) any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law, or (c) motor vehicles the perfection of a security interest in which is excluded from the UCC in the relevant jurisdiction; provided further that the foregoing assignment, pledge and grant of a security interest shall be deemed not to assign, pledge and grant a security interest in Excluded Assets or any assets not required to be pledged pursuant to Section 5.10 of the Credit Agreement.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor Obligor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) ), continuation statements, or other filings and recordings, and hereby ratifies any and all such filings made prior to the date hereof, with respect to the Article 9 Collateral and any other collateral pledged hereunder or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, or such other information as may be required under applicable law, including (xi) whether such Grantor Obligor is an organization, the type of organization and any organizational identification number issued to such Grantor and Obligor, (yii) in the case of a financing statement filed as a fixture filingFixtures and As-Extracted Collateral, a sufficient description of the real property to which such Article 9 Collateral relates, and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the Security Interest in the Article 9 Collateral or other collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Obligor agrees to provide such information to the Collateral Agent promptly upon written requestspecific request therefor. The Each Obligor hereby further irrevocably authorizes the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, Obligor without the signature of any GrantorObligor, and naming any Grantor Obligor or the Grantors Obligors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Obligor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Massey Energy Co), Guarantee and Collateral Agreement (Alpha Natural Resources, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter of Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims as described on Schedule II hereto;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall
(a) any vehicle, (b) any assets, whether now owned or hereafter acquired, that constitute Excluded Property or otherwise with respect to which the Collateral and Guarantee Requirement or the other Senior Secured Note Documentparagraphs of Section 5.10 of the Credit Agreement need not be satisfied by reason of Section 5.10(f) of the Credit Agreement, (c) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (d) any Equity Interests and or debt securities excluded from the pledge made pursuant to Section 2.01 hereof, (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, that license, contract or agreement to which such Pledgor is a party (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulationprinciples of equity); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (f) requiring separate financial statements of any Equipment or other asset owned by any Pledgor that is subject to a purchase money lien or a Capitalized Lease Obligation if the contract or other agreement in which such subsidiary to be filed with the SEC Lien is granted (or any other governmental agency). In the event that Rule 3-10 documentation providing for such Capitalized Lease Obligation) prohibits or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of any person other than the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Pledgors as a condition to the extent necessary creation of any other security interest on such Equipment or (g) any intent-to-use United States trademark applications for which an amendment to release the first-priority security interests alleged 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 the shares of Equity Interests conformance with 15 U.S.C. §1051(a) or examined and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted accepted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests United States Patent and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsTrademark Office.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Collateral Agreement, Collateral Agreement (Momentive Specialty Chemicals Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, together with its permitted successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest interest, regardless of where located (but in all cases excluding any Excluded Collateral, collectively, the “Collateral”Assets):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments and Promissory notes;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged Collateralcash and Moneys;
(xiii) all Records and Securities Accounts;
(xiv) all Commercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(c);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and substitutions, replacements for and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoingforegoing (all of the above in this Section 3.01, the “Article 9 Collateral”). It is understood that the term “Article 9 Collateral” shall not include any Excluded Asset; provided, however, that Article 9 Collateral shall include any Proceeds, substitutions or replacements of any of the foregoing (unless such Proceeds, substitutions or replacements would constitute an Excluded Asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant U.S. jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents any Copyright Security Agreement, Patent Security Agreement or Trademark Security Agreement, as applicable, as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of issued, registered or applied for United States Patents, United States Trademarks or United States Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors debtor and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Second Lien Collateral Agreement (Franchise Group, Inc.), First Lien Collateral Agreement (Franchise Group, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Note Obligations, including the obligations arising pursuant to the Guaranty Agreement, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment and Fixtures;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual PropertyLetter-of-Credit Rights to the extent constituting a Supporting Obligation for other Article 9 Collateral as to which perfection of security interests in such Article 9 Collateral is accomplished solely by the filing of a UCC financing statement;
(xiixi) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xivxii) all letters of credit under which such Grantor is the beneficiary Intellectual Property and Letter of Credit RightsLicenses;
(xvxiii) all Supporting Obligations;
(xvi) all cash Commercial Tort Claims listed on Schedule III and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of supplement thereto received by the foregoing;
(xviii) all other personal property whatsoever of such GrantorCollateral Agent pursuant to Section 3.03(g); and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to products, accessions, rents and substitutions and replacements for and products profits of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, (i) this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note Document, the Equity Interests Excluded Assets and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would requireii) the filing with the SEC Article 9 Collateral (or nor any other governmental agencydefined term therein) of separate financial statements of shall not include any subsidiary of Holdings due Excluded Assets.
(b) Subject to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesSection 3.01(e), then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of each Grantor hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto and continuations thereof that (i) indicate the Collateral as “all assetsassets of the debtor, whether now existing or hereafter arising” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained ; provided that the foregoing will not limit or otherwise affect the obligations and liabilities of the Grantors to the extent set forth herein and in this Agreement shall be construed the other Note Documents.
(d) Upon three (3) Business Days prior written notice (or, with respect to make filings as of the Closing Date, without any such notice) to the applicable Grantor, the Collateral Agent is authorized to file with the USPTO or the USCO (or any successor office) additional documents (including any Intellectual Property Security Agreements and/or supplements thereto) as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in the Registered Intellectual Property Collateral of each Grantor in which a security interest has been granted by each Grantor, and naming any Grantor as debtor and the Collateral Agent as secured party.
(e) Notwithstanding anything to the contrary in the Note Documents, none of the Grantors shall be required, nor is the Collateral Agent authorized, (i) to perfect the Security Interests granted by this Agreement (including Security Interests in Investment Property and Fixtures) by any means other than by (A) filings pursuant to the UCC in the office of the secretary of state (or similar central filing office) of the relevant State(s), and filings in the applicable real estate records with respect to any fixtures relating to Mortgaged Property to the extent required by the Collateral and Guarantee Requirement, (B) filings in United States government offices with respect to Intellectual Property of Grantor as expressly required elsewhere herein, (C) delivery to the Collateral Agent (or to the First Lien Administrative Agent pursuant to the First Lien Security Agreement), to be held in its possession of all Collateral consisting of Instruments or certificated Pledged Collateral as expressly required elsewhere herein or (D) other methods expressly provided herein, (ii) to enter into any deposit account control agreement, securities account control agreement or any other Secured Party liable as a member control agreement with respect to any deposit account, securities account or any other Collateral that requires perfection by “control,” (iii) to take any action (other than the actions listed in clauses (i)(A) and (C) above) with respect to any assets located outside of the United States or any other assets, including any Intellectual Property registered in any non-U.S. jurisdiction (and no security agreements or pledge agreements governed under the laws of any limited liability company non-U.S. jurisdiction shall be required), (iv) to perfect in any assets subject to a certificate of title statute or as a partner of (v) to deliver any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (Equity Interests except as referred to expressly provided in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonSection 2.02.
Appears in 2 contracts
Samples: Security Agreement (Global Eagle Entertainment Inc.), Securities Purchase Agreement (Global Eagle Entertainment Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all EquipmentGeneral Intangibles, including all Intellectual Property;
(vi) all General IntangiblesInstruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securitiesother Goods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that none of “Article 9 Collateral”, any other term defined in the preceding paragraph or any term defined by reference to the UCC shall include, and in no event shall the Security Interest attach to, any Excluded Asset; provided further that Proceeds, substitutions or replacements of Excluded Assets shall not be subject to the preceding proviso unless such Proceeds, substitutions or replacements would themselves constitute Excluded Assets.
(b) Notwithstanding anything to Each Grantor hereby irrevocably authorizes the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Administrative Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto with respect to the Borrower.
(d) Article 9 Collateral or any part thereof naming any Grantor as debtor or the Grantors as debtors and the Administrative Agent as secured party, if filed prior to the date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of Patents, Trademarks or Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Collateral Agreement (Sra International Inc), Credit Agreement (Sra International Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsLetters of Credit and Letter-of-Credit Rights;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xivxi) all letters of credit under which such Grantor is the beneficiary Money and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided, that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (and the term “Collateral” shall not include) (A) any vehicle covered by a certificate of title or ownership, (B) any Equity Interest excluded from the pledge made pursuant to Article II hereunder pursuant to clauses (A) through (G) of Section 2.01, (C) any asset with respect to which the Administrative Agent determines (with an acknowledgement to the U.S. Borrower) that the costs or other Senior Secured Note Documentconsequences (including adverse tax consequences) of providing a security interest in such asset is excessive in view of the benefits to be obtained by the Lenders, the Equity Interests and other securities of (D) any direct or indirect subsidiary of Holdings that are Equipment owned by any Grantor will constitute Collateral securing Note Obligations that is subject to a purchase money lien or a Capitalized Lease permitted by the Credit Agreement if the contract or other agreement in which such Encumbrance is granted (or the documentation providing for such Capitalized Lease) prohibits or requires the benefit consent of Senior Secured Note Holders only any person other than the U.S. Borrower or any Subsidiary as a condition to the creation of any other security interest on such Equipment, (E) any assets with respect to which a security interest is not required to be granted under Section 6.11 of the Credit Agreement by reason of the second sentence of Section 6.11(b) or of Section 6.11(d) of the Credit Agreement, (F) any Letter of Credit or Letter of Credit Rights to the extent that such Equity Interests and other securities can secure any Grantor is required by applicable law to apply the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 proceeds of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements a drawing of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 Letter of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationCredit for a specified purpose, or (G) any General Intangible, Investment Property or rights of a Grantor arising under any contract, lease, instrument, license or other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties document if (but only to the extent necessary to not be subject to that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such requirement) (any such Equity Interests General Intangible, Investment Property or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations rights in favor of the Note Secured Parties. For a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein shall not include negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such Equity Interests contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided however, that the limitation set forth in clause (G) above shall remain not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral securing to the Loan Obligations extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the UCC. Each Grantor shall, if requested to do so by the Administrative Agent or the Collateral Agent, use commercially reasonably efforts to obtain any such required consent that is reasonably obtainable with respect to Collateral which the Administrative Agent or the Collateral Agent reasonably determines to be material.
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Security Agreement (Nielsen Holdings B.V.), Security Agreement (Global Media USA, LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Paper;Deposit Accounts
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInstruments;
(x) all Investment Intellectual Property;
(xi) all Intellectual PropertyInventory;
(xii) all Investment Property other than the Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xiv) all minerals, oil, gas and As-Extracted Collateral;
(xv) all Supporting Obligations;books and records pertaining to the Article 9 Collateral; and
(xvi) all cash substitutions, replacements, accessions, products and cash equivalents;
proceeds (xviiincluding insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all proceeds, Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in the Credit Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) and the other provisions of the Credit Documents with respect to Collateral need not be satisfied with respect to (A) motor vehicles or other assets subject to certificates of title (except to the extent the security interests in such vehicles or assets can be perfected by filing an “all assets” UCC-1 financing statement) and commercial tort claims, (B) any assets over which the granting of security interests in such assets would be prohibited by an enforceable contractual obligation binding on the assets (including permitted liens, leases or licenses), applicable Requirements of Law (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code or other Senior Secured Note Documentapplicable Requirement of Law, other than proceeds thereof, the Equity Interests and assignment of which is expressly deemed effective under the Uniform Commercial Code or other securities applicable Requirement of any direct Law notwithstanding such prohibitions) or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests security interests would require obtaining the consent of any Governmental Authority or would result in material and other securities can secure adverse tax consequences to the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (Borrower, any Subsidiary or any other lawParent Entity as reasonably determined by the Borrower in writing delivered to the Collateral Agent, rule (C) those assets with respect to which, in the reasonable judgment of the Agent and the Borrower, the burdens, costs or regulation) requiring separate financial statements consequences of obtaining or perfecting such subsidiary a security interest are excessive in view of the benefits to be filed with obtained by the SEC Secured Parties therefrom, (D) any Letter of Credit Rights (other than to the extent a Lien thereon can be perfected by filing an “all assets” UCC-1 financing statement), (E) any Excluded Equity Interests, (F) any Grantor’s right, title or interest in any license, contract or agreement to which such Grantor is a party or any other governmental agency). In the event that Rule 3-10 of its right, title or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due interest thereunder to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to extent, that such requirement) (a grant would violate the terms of applicable Requirements of Law or of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such Equity Interests license, contract or other securitiesagreement to which such Grantor is a party; provided that, “Excluded Note Collateral”). In immediately upon the ineffectiveness, lapse or termination of any such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, and such Grantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (G) any Senior Secured Note Holder foreign collateral or credit support with respect to such foreign collateral (other than any holder of Other Pari Passu Lien Obligationssuch assets constituting Pledged Collateral), (H) any real property (owned or leased) or Oil and Gas Properties (owned or leased), other than the Mortgaged Properties; provided that in no event shall any Grantor be required to deliver landlord waivers, estoppels or collateral access letters, (I) cash and Permitted Investments, Deposit Accounts, Securities Accounts (including securities entitlements and related assets) and Commodity Accounts, in each case other than (i) to the extent necessary to release a Lien thereon can be perfected by filing an “all assets” UCC-1 financing statement, (ii) cash collateral accounts contemplated under the first-priority security interests Credit Documents and (iii) control where the applicable Commodity Account, Securities Account, Deposit Account or other asset is maintained with the bank acting as Agent (in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For which case, for the avoidance of doubt, no control agreement or other arrangement shall be required hereunder)), (J) any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit asset (other than as set forth in clause (I) above) a security interest in which can only be perfected through control, control agreements or other control arrangements, in each case other than possession or control of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 Pledged Securities (whether certificated or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permituncertificated) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary required hereunder, (K) any property or assets owned by a Foreign Subsidiary or an Unrestricted Subsidiary (unless such Foreign Subsidiary or Unrestricted Subsidiary is at any time a Grantor hereunder), (L) any Trademark application filed in the United States Patent and Trademark Office on the basis of any Grantor’s “intent to not be subject to any use” such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent Trademark and for which a form evidencing use of the Note Trustee, Trademark has not yet been filed with and accepted by the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien ObligationsUnited States Patent and Trademark Office, to the extent necessary that granting a security interest in such Trademark application prior to subject such filing would result in the cancellation or abandonment of the same or would impair the registrability, enforceability or validity of such Trademark application or any registration that issues therefrom under applicable federal law, (M) Margin Stock and, to the Liens extent prohibited by the terms of any applicable Organization Documents, joint venture agreement, shareholders’ agreement or similar agreement, Equity Interests in any other Person other than Wholly owned Subsidiaries that are Restricted Subsidiaries and (N) any Building (as defined in the applicable Flood Insurance Regulation) or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Regulation) located on real property, in each case, in an area having special flood hazards and in which flood insurance is available under the Security Documents National Flood Insurance Act of 1968 (the foregoing clauses (A) through (N), the “Excluded Assets”); provided that the Collateral shall include the Proceeds of any of the foregoing unless such additional Equity Interests and Proceeds also constitute Excluded Assets. With respect to the Collateral, no control agreements or control arrangements will be required with respect to any asset (other securities. This Section 3.01(b) shall apply mutatis mutandis than the delivery or control of Pledged Securities to Other Pari Passu Lien Obligationsthe Agent to the extent required by Article II).
(cb) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agentpledges, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors on behalf of and permitted assigns, for the ratable benefit of the Secured PartiesCreditors, a security interest (the “Security Interest”) in all of its right, title or and interest in or in, to any and under all of the following assets property and properties in each case other assets, whether tangible or intangible, wherever located, and now owned by or at any time owing to, or hereafter acquired by or arising in favor of, such Grantor or in Grantor, and regardless of where located (all of which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, are collectively referred to as the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including Electronic Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinTangible Chattel Paper);
(iii) all Chattel PaperIntellectual Property;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Instruments;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights and Supporting Obligations;
(xiii) all Records and all books and records pertaining to the CollateralDeposit Accounts;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsVehicles;
(xv) all Supporting ObligationsCommercial Tort Claims as specified from time to time in Schedule IV hereto (as the same may be updated from time to time in accordance with the terms hereof);
(xvi) all cash or other property deposited with the Collateral Agent or any Secured Creditor or any Affiliate of the Collateral Agent or any Secured Creditor or which the Collateral Agent, for its benefit and cash equivalentsfor the benefit of the other Secured Creditors, or any Secured Creditor or such Affiliate is entitled to retain or otherwise possess as collateral pursuant to the provisions of this Agreement or the Credit Agreement;
(xvii) all Deposit Accounts books, records, files, correspondence, computer programs, tapes, disks and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in related data processing software which contain information identifying or on deposit in pertaining to any of the foregoingforegoing or any Account Debtor or showing the amounts thereof or payments thereon or otherwise necessary or helpful in the realization thereon or the collection thereof;
(xviii) all other personal property whatsoever of such GrantorAs-Extracted Collateral; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all accessions to, substitutions for and replacements, products and cash and non-cash proceeds (including Stock Rights) of the foregoing (including any claims to any items referred to in this definition and all offspringsany claims against third parties for loss of, rents profits and products damage to or destruction of any or all of the foregoing and all collateral security and guarantees given by any person Collateral or for proceeds payable under or unearned premiums with respect to policies of insurance) in whatever form, including cash, negotiable instruments and other instruments for the payment of money, Chattel Paper, collateral agreements and other documents. Notwithstanding the foregoing or anything herein to the contrary, in no event shall the “Article 9 Collateral” include or the Security Interest attach to any of the foregoingExcluded Collateral.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent Creditors at any time and from time to time to file in any relevant U.S. jurisdiction any financing statements (including fixture filings) statements, with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) ), such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of Patents, Trademarks or Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowercreditor.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party Creditor to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Credit Agreement (Builders FirstSource, Inc.), Abl Collateral Agreement (Builders FirstSource, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Notes Obligations, each Grantor hereby confirms the pledge and grant grants to the Second Lien Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest interest, regardless of where located (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(c);
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that in no event shall the Security Interest attach to (A) any Excluded Asset (including any Excluded Equity Interest), or (B) any asset owned by any Grantor that the Issuer and the Second Lien Notes Collateral Agent or, prior to the Disposition Date, the Controlling Party, in each case subject to and in accordance with Section 4.14(c) of the Indenture, shall have agreed in writing to exclude from being Article 9 Collateral on account of the cost of creating a security interest in such asset hereunder being excessive in view of the benefits to be obtained by the Secured Parties therefrom. It is understood that, to the extent the Security Interest shall not have attached to any such asset as a result of clauses (A) or (B) above, the term “Article 9 Collateral” shall not include any such asset; provided, however, that Article 9 Collateral shall include any Proceeds, substitutions or replacements of any of the foregoing (unless such Proceeds, substitutions or replacements would constitute property referred to in clauses (A) or (B)).
(b) Notwithstanding anything Each Grantor hereby agrees to the contrary in this Agreement prepare and file or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) cause the filing with of (at its own expense), and irrevocably authorizes the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Second Lien Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file (at such Grantor’s expense), in any relevant U.S. jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and thereof, amendments thereto and continuation statements, as may be necessary in order to perfect or maintain the perfection of the Second Lien Collateral Agent’s security interest in the Collateral owned by such Grantor, that (i) indicate describe the collateral covered thereby in any manner as may be necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement or as the Second Lien Notes Collateral Agent may reasonably request, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement statement, amendment or amendmentcontinuation statement, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Second Lien Notes Collateral Agent promptly upon written request. The Collateral Agent agreesEach Grantor agrees to deliver a file-stamped copy of each such financing statement, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings amendment or continuation statement to the BorrowerSecond Lien Notes Collateral Agent.
(dc) The Each Grantor agrees to prepare and file or cause the filing of (at its own expense), and further authorizes the Second Lien Notes Collateral Agent is further authorized to file (at such Grantor’s expense), the Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice in the United States, but not any office in any other country), as applicable, and any such additional documents pursuant to Section 3.05(b) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of Patents, Trademarks or Copyrights registered or applied-for in the United States, granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Second Lien Notes Collateral Agent as secured partySecured Party. The Collateral Agent agreesEach Grantor agrees to deliver a file-stamped copy of each such agreement, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies instrument or other evidence of such filings filing to the BorrowerSecond Lien Notes Collateral Agent.
(ed) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Second Lien Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed Notwithstanding the grant of authority to the Second Lien Notes Collateral Agent to make the filings contemplated by this Section 3.01, in no event shall the Second Lien Notes Collateral Agent (or the Trustee) be obligated to prepare or file any initial financing statement, amendment thereto, continuation statement or any other Secured Party liable instrument, agreement or document with the relevant U.S. jurisdiction, United States Patent and Trademark Office or United States Copyright Office (or any successor office), as a member of any limited liability company applicable, to perfect or as a partner of any partnership, neither maintain the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any perfection of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company security interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Persongranted hereunder.
Appears in 2 contracts
Samples: Second Lien Collateral Agreement (Sotera Health Co), Second Lien Collateral Agreement (Sotera Health Topco, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Paper[Reserved];
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including Inventory and all Pledged Securitiesother Goods not otherwise described above;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims (as described on Schedule II hereto);
(xii) all Pledged Collateralother personal property not otherwise described above (except property specifically excluded from any defined term used in any of the foregoing clauses);
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement Agreement, the other Indenture Documents or any other Senior Additional Secured Note Debt Document, this Agreement shall not constitute a grant of a security interest in (and the Equity Interests Collateral shall not include) (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any cash, deposit account or securities account, (c) any assets owned on or acquired after the Issue Date, to the extent that, and other securities for long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of any direct the acquisition thereof and was not created or indirect subsidiary made binding on such assets in contemplation of Holdings that are owned by any Grantor will constitute or in connection with the acquisition of such assets; provided, that, upon the reasonable request of the Collateral securing Note Obligations for Agent (or, until the benefit Discharge of Senior Secured Note Holders Lender Claims, the Intercreditor Agent), the Issuer shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any such contractual obligation, (d) any property excluded from the definition of Pledged Collateral pursuant to Section 2.01 hereof, including without limitation any Designated Securities, (e) any Letter of Credit Rights to the extent any Pledgor, is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (f) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, that license, contract or agreement to which such Pledgor is a party (other than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulationprinciples of equity); provided, that immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (g) requiring separate financial statements of any Equipment owned by any Pledgor that is subject to a purchase money lien or a Capitalized Lease Obligation if the contract or other agreement in which such subsidiary to be filed with the SEC Lien is granted (or any other governmental agency). In the event that Rule 3-10 documentation providing for such Capitalized Lease Obligation) prohibits or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of any person other than the Note TrusteePledgors as a condition to the creation of any other security interest on such Equipment, the Collateral Agent, (h) solely with respect to any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, any asset that is not intended to the extent necessary be collateral with respect to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed such Other Pari Passu Obligations pursuant to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) Additional Secured Debt Document governing such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Obligations and (i) any property of a Pledgor that is not required to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsbe pledged as security for Senior Lender Claims.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(eb) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Second Lien Collateral Agreement, Second Lien Collateral Agreement (Momentive Performance Materials Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Notes Obligations, each Grantor hereby confirms the pledge and grant grants to the First Lien Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest interest, regardless of where located (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(c);
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that in no event shall the Security Interest attach to (A) any Excluded Asset (including any Excluded Equity Interest), or (B) any asset owned by any Grantor that the Issuer and the First Lien Notes Collateral Agent or, prior to the Disposition Date, the Controlling Party, in each case subject to and in accordance with Section 4.14(c) of the Indenture shall have agreed in writing to exclude from being Article 9 Collateral on account of the cost of creating a security interest in such asset hereunder being excessive in view of the benefits to be obtained by the Secured Parties therefrom. It is understood that, to the extent the Security Interest shall not have attached to any such asset as a result of clauses (A) or (B) above, the term “Article 9 Collateral” shall not include any such asset; provided, however, that Article 9 Collateral shall include any Proceeds, substitutions or replacements of any of the foregoing (unless such Proceeds, substitutions or replacements would constitute property referred to in clauses (A) or (B)).
(b) Notwithstanding anything Each Grantor hereby agrees to the contrary in this Agreement prepare and file or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) cause the filing with of (at its own expense), and irrevocably authorizes the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured First Lien Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file (at such Grantor’s expense), in any relevant U.S. jurisdiction any financing statements (including fixture filings) statements, with respect to the Collateral or any part thereof and thereof, amendments thereto and continuation statements, as may be necessary in order to perfect or maintain the perfection of the First Lien Collateral Agent’s security interest in the Collateral owned by such Grantor that (i) indicate describe the collateral covered thereby in any manner as may be necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement or as the First Lien Notes Collateral Agent may reasonably request, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement statement, amendment or amendmentcontinuation statement, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the First Lien Notes Collateral Agent promptly upon written request. The Each Grantor agrees to deliver a file-stamped copy of each such financing statement, amendment or continuation statement to the First Lien Notes Collateral Agent. Each Grantor agrees to prepare and file or cause the filing of (at its own expense) and further authorizes the First Lien Notes Collateral Agent agrees, upon request by the Borrower and to file (at the Borrowersuch Grantor’s expense), to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice in the United States, but not any office in any other country), as applicable, and any such additional documents pursuant to Section 3.05(b) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of Patents, Trademarks or Copyrights registered or applied-for in the United States, granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the First Lien Notes Collateral Agent as secured partySecured Party. The Collateral Agent agreesEach Grantor agrees to deliver a file-stamped copy of each such agreement, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies instrument or other evidence of such filings filing to the BorrowerFirst Lien Notes Collateral Agent.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the First Lien Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed Notwithstanding the grant of authority to the Second Lien Notes Collateral Agent to make the filings contemplated by this Section 3.01, in no event shall the Second Lien Notes Collateral Agent (or the Trustee) be obligated to prepare or file any initial financing statement, amendment thereto, continuation statement or any other Secured Party liable instrument, agreement or document with the relevant U.S. jurisdiction, United States Patent and Trademark Office or United States Copyright Office (or any successor office), as a member of any limited liability company applicable, to perfect or as a partner of any partnership, neither maintain the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any perfection of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company security interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Persongranted hereunder.
Appears in 2 contracts
Samples: First Lien Collateral Agreement (Sotera Health Co), First Lien Collateral Agreement (Sotera Health Topco, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Notes Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all AccountsProperty;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAccounts;
(iii) all Chattel Paper;
(iv) all DocumentsCommercial Tort Claims listed on Schedule II hereto;
(v) all Deposit Accounts;
(vi) all Documents;
(vii) all Equipment;
(viviii) all General Intangibles;
(viiix) all GoodsInstruments;
(viiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) any letter-of-credit rights, (B) any Securitization Assets, (C) motor vehicles and other assets subject to certificates of title, (D) any Equity Interests in any Unrestricted Subsidiary or any other Senior Secured Note Document, the Equity Interests and other securities of any Subsidiary acquired pursuant to a Permitted Acquisition financed with Indebtedness incurred pursuant to Section 7.03(g) of the Senior Credit Agreement if such Equity Interests serve as security for such Indebtedness or if the terms of such Indebtedness prohibit the creation of any other lien on such Equity Interests, (E) more than 65% of the issued and outstanding voting Equity Interests of any Material Foreign Subsidiary that is a direct or indirect subsidiary of Holdings Holdings, (F) Equity Interests of any Foreign Subsidiary that is not a Material Foreign Subsidiary, (G) Equity Interests of any Subsidiary of a Foreign Subsidiary that is a direct or indirect Subsidiary of Holdings, (H) Equity Interests of any Foreign Subsidiary that are pledged pursuant to a Foreign Pledge Agreement, (I) Equity Interests of any Person that is not an indirect, wholly owned by Subsidiary of Holdings III, (J) (i) if there are outstanding Obligations under the Senior Credit Facilities, any Grantor will constitute Collateral securing Note Obligations for asset with respect to which the benefit of Senior Secured Note Holders only Administrative Agent has confirmed in writing to the extent Issuer its determination that the costs of providing a security interest in such Equity Interests and other securities can secure asset or perfection thereof is excessive in view of the benefits to be obtained by the secured parties under the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 Credit Agreement or Rule 3-16 of Regulation S-X (ii) if there are no outstanding Obligations under the Securities Act Senior Credit Facilities, any asset with respect to which the board of directors or the senior management of the Issuer has confirmed in writing to the Trustee and the Notes Collateral Agent its reasonable determination that the costs of providing a security interest in such asset or perfection thereof is excessive in view of the benefits to be obtained by the Secured Parties, (K) security interests prohibited by law or by agreements containing anti-assignment clauses not overridden by the UCC or other applicable law or (L) any General Intangible, Investment Property or other rights of a Grantor arising under any contract, lease, instrument, license or other document or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties assets subject thereto if (but only to the extent necessary to not be subject to that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such requirement) (any such Equity Interests General Intangible, Investment Property or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations rights in favor of the Note Secured Parties. For a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein shall not include negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such Equity Interests contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided, however, that the limitation set forth in clause (L) above shall remain not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral securing to the Loan Obligations extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the Uniform Commercial Code. Each Grantor shall, if requested to do so by the Trustee, use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable with respect to Collateral which the Trustee reasonably determines to be material.
(b) Each Grantor hereby irrevocably authorizes the Notes Collateral Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained .
(d) Notwithstanding anything to the contrary in this Agreement or the Indenture, none of the Grantors shall be construed required to make the Collateral Agent enter into any deposit account control agreement or securities account control agreement with respect to any other Secured Party liable as a member of any limited liability company deposit account or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personsecurities account.
Appears in 2 contracts
Samples: Security Agreement (Freescale Semiconductor Holdings I, Ltd.), Security Agreement (Freescale Semiconductor Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Notes Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in in, to or to under any and all of the following assets and properties in each case whether tangible or intangibleproperties, wherever located, and whether now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts, including Receivables;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iii) all Commercial Tort Claims described on Schedule III hereto, as such Schedule may be supplemented from time to time pursuant to Section 3.04(d);
(iv) all Deposit Accounts, Securities Accounts and Commodity Accounts;
(v) all Letter of Credit Rights;
(vi) all Documents;
(vvii) all Equipment;
(viviii) all General Intangibles;
(viiix) all Instruments;
(x) all Insurance;
(xi) all Inventory and other Goods;
(viiixii) all Instruments, including all Pledged SecuritiesFixtures;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxiii) all Investment Property;
(xixiv) all Intellectual Property;
(xiixv) all Pledged CollateralMoney;
(xiiixvi) all Records and Residual Interests;
(xvii) all Mortgage Loans;
(xviii) all Collateral Accounts;
(xix) all books and records pertaining to the Article 9 Collateral;
(xivxx) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securitiesCash Equivalents and Money (a) held in, securities entitlementsor expressly required to be deposited into, financial assets and any Collateral Account or (b) received by the Collateral Agent, any Noteholder or any other funds held in or on deposit in any Secured Party as a result of the foregoing;
(xviii) all other personal property whatsoever exercise of such Grantorremedies in accordance with the Note Documents in respect of the Pledged Securities; and
(xixxxi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding , and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing, and any and all Proceeds of any insurance, indemnity or warranty payable to any Grantor from time to time with respect to any of the foregoing; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Excluded Assets.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties hereby irrevocably authorizes (but only to the extent necessary to does not be subject to such requirementobligate) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amendedParties, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file (x) in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor Grantor, or words of similar effecteffect or being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees , and (y) solely with respect to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agreesIntellectual Property Collateral, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Each Grantor agrees to provide such information to the Collateral Agent agrees, promptly upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerreasonable request.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise .
(except as referred to in the following sentenced) shall have any The pledge and perfection of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting and the Security Interest is subject to the provisions of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the definition of Collateral Agent, any other Secured Party, any Grantor and/or any other PersonRequirement.
Appears in 2 contracts
Samples: Security Agreement (Velocity Financial, Inc.), Security Agreement (Velocity Financial, Inc.)
Security Interest. (a) As Each Grantor, as security for the payment or performance, as the case may be, and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accountsaccounts (including accounts receivable and healthcare insurance receivables);
(ii) the Cash Collateral Account all chattel paper (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited whether tangible or required to be deposited thereinelectronic);
(iii) all Chattel Papercash, money and deposit accounts;
(iv) all Documentsdocuments (including electronic documents);
(v) all Equipmentgoods (including all equipment, fixtures and any accessions thereto);
(vi) all General Intangibles;
(vii) all Goodsinstruments (including promissory notes);
(viii) all Instruments, including all Pledged Securitiesinventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all insurance claims and proceeds;
(xi) all Intellectual Propertyletter-of-credit rights;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Administrative Agent, including describing such property as “all assets” or “all property”. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or and the United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Security Interest. (a) As security for If, notwithstanding the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) intent of the Loan Obligations (other than contingent obligationsparties stated in Section 2.01(c), each Grantor hereby confirms the pledge sale, assignment and grant transfer of any Sold Assets to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Administrative Agent (for the ratable benefit of the Loan Purchasers) hereunder (including pursuant to Section 2.01(b)) is not treated as a sale for all purposes (except as provided in Sections 2.01(d) and 12.11), then such sale, assignment and transfer of such Sold Assets shall be treated as the grant of a security interest by the Seller to the Administrative Agent (for the ratable benefit of the Purchasers) to secure the payment and performance of all the Seller’s obligations to the Administrative Agent, the Purchasers and the other Secured PartiesParties hereunder and under the other Transaction Documents (including all Seller Obligations). Therefore, and as security for the performance by the Seller of all the terms, covenants and agreements on the part of the Seller to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (Aggregate Capital and all Yield and all other than contingent obligations)Seller Obligations, each Grantor the Seller hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing first priority security interest in in, all of the Seller’s right, title or and interest in or in, to any and under all of the following assets and properties in each case Sold Assets, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoingarising.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations The Administrative Agent (for the benefit of Senior the Secured Note Holders only Parties) shall have, with respect to all the Sold Assets, and in addition to all the other rights and remedies available to the extent that such Equity Interests and other securities can secure Administrative Agent (for the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part benefit of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. ), all the rights and remedies of a secured party under any applicable UCC.
(c) For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” grant of such Grantor or words of similar effectsecurity interest pursuant to this Section 2.07 shall be in addition to, and shall not be construed to limit or modify, the sale of Sold Assets pursuant to Section 2.01(b) or the Seller’s grant of security interest pursuant to Section 2.08, (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) nothing in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement Section 2.01 shall be construed to make as limiting the Collateral Agent or rights, interests (including any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the dutiessecurity interest), obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree thatparty under this Section 2.07, unless and (iii) subject to the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoforegoing clauses (i) and (ii), this Agreement Section 2.07 shall not be construed as creating a partnership or joint venture among to contradict the Collateral Agent, any other Secured Party, any Grantor and/or any other Personintentions of the parties set forth in Section 2.01(c).
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Kinetik Holdings Inc.), Receivables Purchase Agreement (Mativ Holdings, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guaranty, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all Goods;
(viiix) all Instruments, including all Pledged Securities;
(ixxi) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxii) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset or any other Senior Secured Note Document, Excluded Security.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Pledge and Security Agreement (LVB Acquisition, Inc.), Pledge and Security Agreement (Biolectron, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranteed Obligations, each Grantor hereby confirms the pledge collaterally assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) ): all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) ; all Chattel Paper;
(iv) ; all Documents;
(v) ; all Equipment;
(vi) ; all General Intangibles;
(vii) ; all Goods;
(viii) ; all Instruments, including ; all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) ; all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and ; all books and records pertaining to the Article 9 Collateral;
(xiv) ; all letters of credit under which such Grantor is the beneficiary and Letter Fixtures; all Letters of Credit and Letter-of-Credit Rights;
(xv) ; all Supporting Obligations;
(xvi) Intellectual Property; all Commercial Tort Claims listed on Schedule III and on any supplement thereto received by the Collateral Agent pursuant to Section 3.03(g); all cash and cash equivalents;
Cash Equivalents; all Deposit Accounts, Securities Accounts and Commodities Accounts; all agreements, including, without limitation, each and all of the Tax Equity Transaction Documents and all agreements or documents now existing or hereafter entered into by such Grantor relating to the acquisition, development, construction, supply, operation, maintenance or use and occupancy of any Project, including without limitation, all other instruments, agreements and documents executed and delivered with respect to such agreements, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof (the agreements described in this clause (xvii), collectively, the “Assigned Agreements”), including, without limitation, all rights of such Grantor (x) to receive moneys due and to become due under or pursuant to the Assigned Agreements, to compel performance and otherwise to exercise all Deposit Accounts remedies thereunder, including, without limitation, all rights to make determinations, to exercise any election or option contained in such agreements (including, but not limited to, termination thereof), to give or receive any notice or consent, to demand and Securities Accountsreceive any property which is the subject of any of the Assigned Agreements, including all cash, marketable securities, securities entitlements, financial assets to file any claims and other funds held generally to take any action which (in the opinion of the Collateral Agent) may be necessary or on deposit advisable in connection with any of the foregoing;
; (xviiiy) to receive the proceeds of any claim for damages arising out of or for breach of any Assigned Agreement and proceeds of any insurance, indemnity, warranty or guaranty with respect to the Assigned Agreements; and (z) to all other personal property whatsoever of such Grantor’s right, title and interest in, to and under the Assigned Agreements; and
(xix) and to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a collateral assignment of or a grant of a security interest in any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties Excluded Asset (but only to the extent necessary to not be subject to such requirement) (for so long as any such Equity Interests or other securitiesassets remain Excluded Assets, “and if and when any asset shall cease to be an Excluded Note Collateral”Asset, a Lien on and security interest in such asset shall be deemed granted therein). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, Each Grantor hereby irrevocably authorizes the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Credit Agreement (Vivint Solar, Inc.), Credit Agreement (Vivint Solar, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xivxi) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsFixtures;
(xvxii) all Letter-of-Credit Rights but only to the extent constituting a Supporting ObligationsObligation for other Collateral as to which perfection of a security interest in such Collateral is accomplished by the filing of a UCC financing statement;
(xvixiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Assets and the term “Article 9 Collateral” shall not include any Excluded Assets.
(b) Subject to Section 3.01(e), the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect or as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement .
(d) The Collateral Agent is authorized to file with the USPTO or the USCO (or any successor office) such documents executed by each Grantor which shall be construed to make executed by each Grantor upon reasonable request of the Collateral Agent as may be necessary or advisable for the purpose of creating, attaching and perfecting the Security Interest in United States Intellectual Property of each Grantor in which a security interest has been granted by each Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. No Grantor shall be required to complete any filings governed by non-United States laws or take any other action with respect to the perfection of the Security Interests created hereby in any Intellectual Property subsisting in any non-United States jurisdiction.
(e) Notwithstanding anything to the contrary in the Loan Documents, none of the Grantors shall be required, nor is the Collateral Agent authorized, (i) to perfect the Security Interests granted by this Agreement (including Security Interests in Investment Property and Fixtures) by any means other than by (A) filings pursuant to the UCC in the office of the secretary of state (or similar central filing office) of the relevant State(s), (B) filings with the USPTO or the USCO, as applicable, with respect to Intellectual Property of the Grantors as expressly required elsewhere herein, (C) delivery to the Collateral Agent to be held in its possession of all Collateral consisting of Instruments and certificated Pledged Equity as expressly required elsewhere herein or (D) other methods expressly provided herein, (ii) to enter into any deposit account control agreement, securities account control agreement or any other Secured Party liable as a member of control agreement with respect to any limited liability company deposit account, securities account or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party Collateral that requires perfection by virtue of “control” except as otherwise set forth in this Section 3.01(e), (iii) to take any action pursuant to this Agreement (other than the actions listed in clauses (i)(A) and (C) above) with respect to any assets located outside of the United States, (iv) to perfect in any assets subject to a certificate of title statute or otherwise (v) to deliver any Equity Interests pursuant to this Agreement except as referred to expressly provided in the following sentence) shall have any of the dutiesSection 2.01, obligations Section 2.02 or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonSection 2.04.
Appears in 2 contracts
Samples: Security Agreement, Security Agreement (Tradeweb Markets Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)of such Grantor, including the Guaranty, each Grantor hereby confirms the pledge pledges and grant collaterally assigns to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including, without limitation, all Tangible Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinElectronic Chattel Paper);
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment and Fixtures;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Intellectual Property Licenses;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all Money, cash and cash equivalents;
(xviixiii) all letters of credit, Letter-of-Credit Rights and other Supporting Obligations;
(xiv) all Deposit Accounts and Accounts, Securities Accounts, including Commodities Accounts and all cashother demand, marketable deposit, time, savings, cash management, passbook and similar accounts maintained by such Grantor with any bank or other financial institution and all monies, securities, securities entitlements, financial assets Instruments and other funds held in investments deposited or on deposit required to be deposited in any of the foregoing;
(xviiixv) all other personal property whatsoever Security Entitlements in any or all of such Grantor; andthe foregoing;
(xixxvi) all Commercial Tort Claims described on Schedule 2 hereto (as such schedule may be supplemented pursuant to the extent not otherwise included, all Proceeds, Section 3.03(j) hereof);
(xvii) all accessions to and to, substitutions and replacements for the foregoing, together with all, books and products of records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any and all of the foregoing and all offsprings, rents profits and products of General Intangibles at any time evidencing or relating to any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.; and
(bxviii) Notwithstanding to the extent not otherwise included, all Proceeds and products, whether tangible or intangible, of any and all of the foregoing, including, without limitation, resulting from any rebates or refunds, whether for taxes or otherwise, and all proceeds of such Proceeds, or any portion thereof or interest therein, and the proceeds thereof, and to the extent not otherwise included, any indemnity, warranty, or guaranty payable by reason of loss or damage to, and all supporting obligations, collateral security and guarantees given by any Person with respect to any of the foregoing; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Property; provided, however, that “Excluded Property” shall not include any Proceeds, substitutions or any other Senior Secured Note Document, the Equity Interests and other securities replacements of any direct Excluded Property unless such Proceeds, substitutions or indirect subsidiary of Holdings that are owned by any replacements would independently constitute Excluded Property.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect or being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if applicable, any organizational identification number or incorporation number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further irrevocably authorized to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor officeoffice thereof) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing perfecting or protecting confirming the Security Interest granted by each Grantor, with notice to each, but without the signature of any Grantorany, Grantor (only if such signature cannot reasonably be obtained by the Collateral Agent), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case properties, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(x) all Goods and Fixtures;
(xi) all Money, cash, Cash Equivalents, Deposit Accounts, Securities Accounts and Commodities Accounts;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims;
(xiv) all letters of credit under which such Grantor is the beneficiary Collateral Accounts, and Letter of Credit Rightsall cash, Cash Equivalents, Money, Securities and other investments deposited therein;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalentsSecurity Entitlements in any or all of the foregoing;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to ; provided that Article 9 Collateral shall not include, and the contrary in this Agreement Security Interest shall not attach to, and no representation, warranty or covenant contained herein or any other Senior Secured Note DocumentCollateral Document shall apply to, any of the Equity Interests following assets or property, each being an “Excluded Asset”:
(i) any asset (including, to the extent applicable, any Equipment or Inventory owned by a Grantor that is subject to a Lien permitted under Section 7.01(d) of the Credit Agreement), lease, license, franchise, charter, authorization, contract or agreement to which any Grantor is a party, together with any rights or interest thereunder, in each case, if and other securities to the extent security interests therein (A) are prohibited by or in violation of any direct applicable Law, (B) requires any governmental consent that has not been obtained or indirect subsidiary consent of Holdings a third party that are owned is not a Grantor or a Controlled Affiliate of a Grantor that has not been obtained pursuant to any contract or agreement binding on such asset at the time of its acquisition and not entered into in contemplation of such acquisition, or (C) is prohibited by or in violation of a term, provision or condition of any such lease, license, franchise, charter, authorization, contract or agreement to which such Grantor will constitute Collateral securing Note Obligations for is a party, except, in the benefit case of Senior Secured Note Holders only each of the foregoing clauses (A), (B), and (C), to the extent that such prohibition or restriction would be rendered ineffective under the UCC or other applicable Law or principle of equity; provided, however, that, notwithstanding the foregoing, the Article 9 Collateral shall include (and the Security Interest shall attach), at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, shall attach to any portion of such asset, lease, license, franchise, charter, authorization, contract or agreement not subject to the prohibitions specified in clauses (A), (B), or (C) above (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law); provided, further, that the Excluded Assets referred to in this clause (i) shall not include any Proceeds or receivables of any such asset, lease, license, franchise, charter, authorization, contract or agreement (except to the extent such Proceeds or receivables constitute Excluded Assets);
(ii) the Excluded Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3any assets of any Excluded Subsidiary;
(iii) any “intent-10 or Rule 3to-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary use” Trademark applications prior to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agencyand acceptance of a “Statement of Use” pursuant to Section 1(d) of separate financial statements of any subsidiary of Holdings due the Xxxxxx Act or an “Amendment to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not Allege Use” pursuant to be part Section 1(c) of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien ObligationsXxxxxx Act with respect thereto, to the extent necessary that, and 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 (it being understood that after such period such intent-to-use application shall be automatically subject to release the first-priority security interests in the shares of Equity Interests interest granted herein and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of included in the Collateral securing the Note Obligations Collateral);
(A) any leasehold interest (including any ground lease interest) in favor of the Note Secured Parties real property, (but only B) any fee interest in owned real property other than Material Real Property, and (C) any Fixtures affixed to any real property to the extent necessary to (1) such real property does not constitute Material Real Property or (2) a security interest in such Fixtures may not be subject perfected by the filing of a UCC financing statement in the jurisdiction of organization (or other location of a Grantor under Section 9-307 of the UCC) of the applicable Grantor;
(A) as extracted collateral, (B) timber to be cut, (C) farm products, (D) manufactured homes and (E) healthcare insurance receivables;
(vi) any particular asset, if the pledge thereof or the security interest therein would result in material adverse tax consequences to any such financial statement requirement). In such event, Grantor as reasonably determined by the Security Documents may be amended or modified, without Borrower in good faith in consultation with the consent of the Note Trustee, the Collateral Administrative Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.;
(cvii) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) specifically identified asset with respect to which the Collateral Administrative Agent has determined (in its reasonable judgment in consultation with the Borrower) that the costs of obtaining, perfecting or any part maintaining a Security Interest or pledge in such asset exceed the fair market value thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request determined by the Borrower and at in its reasonable judgment) or the Borrower’s expense, to promptly furnish copies of such filings practical benefit to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Parties afforded thereby;
Appears in 2 contracts
Samples: Revolving Facility Security Agreement (Allegro Microsystems Inc), Term Loan Security Agreement (Allegro Microsystems Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)First Lien Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan First Lien Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the First Lien Secured Parties, and confirms its continuing prior grant to the Collateral Agent for the benefit of the Secured PartiesParties of, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xivx) all letters of credit under which such Grantor is the beneficiary Money and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided, that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (and the term “Collateral” shall not include) (A) any vehicle covered by a certificate of title or ownership, (B) any Equity Interest excluded from the pledge made pursuant to Article II hereunder pursuant to clauses (A) through (G) of Section 2.01, (C) any asset with respect to which the Administrative Agent determines (with an acknowledgement to the U.S. Borrower) that the costs or other consequences (including adverse tax consequences) of providing a security interest in such asset is excessive in view of the benefits to be obtained by the Lenders, (D) any Equipment owned by any Grantor that is subject to a purchase money lien or a Capitalized Lease permitted by the Credit Agreement if the contract or other agreement in which such Encumbrance is granted (or the documentation providing for such Capitalized Lease) prohibits or requires the consent of any person other than the U.S. Borrower or any Subsidiary as a condition to the creation of any other security interest on such Equipment, (E) any assets with respect to which a security interest is not required to be granted under Section 6.11 of the Credit Agreement by reason of the second sentence of Section 6.11(b) or of Section 6.11(d) of the Credit Agreement or (F) any General Intangible, Investment Property or rights of a Grantor arising under any contract, lease, instrument, license or other document if (but only to the extent that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such General Intangible, Investment Property or other such rights in favor of a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein shall not include negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided, however, that the limitation set forth in clause (F) above shall not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the UCC. Each Grantor shall, if requested to do so by the Administrative Agent, the Collateral Agent or any Applicable First Lien Representative, use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable with respect to Collateral which the Administrative Agent or the Collateral Agent or the Applicable First Lien Representative reasonably determines to be material.
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent for the benefit of the First Lien Secured Parties at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor or words of similar effect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (A) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (B) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon request.
(c) The Security Interest is granted as security only and shall not subject the Collateral Agent or any other First Lien Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral.
(d) Notwithstanding anything to the contrary in this Agreement Article II or any other Senior Secured Note DocumentArticle III, the term “Pledged Equity,” “Pledged Collateral” or “Collateral”, as it refers to such Collateral securing Permitted Debt Offering Obligations for which the applicable Permitted Debt Offering Agreement specifies such obligations will be subject to this paragraph or whose Authorized Representative otherwise elects to be subject to this paragraph, shall not include any Equity Interests and other securities of any direct or indirect subsidiary a Subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Company to the extent that the pledge of such Equity Interests and other securities can secure would result in Xxxxxxx or the Senior Secured Notes and/or Company being required to file separate financial statements of such Subsidiary with the guarantees SEC, but only to the extent necessary to not be subject to such requirement and only for so long as such requirement is in existence and only with respect thereof without Rule 3-10 to the relevant Permitted Debt Offering Obligations affected; provided that neither Xxxxxxx nor any Subsidiary shall take any action in the form of a reorganization, merger or other restructuring a principal purpose of which is to provide for the release of the Lien on any Equity Interests pursuant to this clause (d). In addition, in the event that Rule 3-16 of Regulation S-X under the Securities Act of 1933, as amended (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that “Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or 16”) is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agencyGovernmental Authority) of separate financial statements of any subsidiary Subsidiary of Holdings the Company due to the fact that such subsidiarySubsidiary’s Equity Interests and other securities secure secures the Senior Secured Notes and/or the related guaranteesPermitted Debt Offering Obligations affected thereby, then the Equity Interests and other securities of such subsidiary shall Subsidiary will automatically be deemed not to be part of the Collateral securing the Note relevant Permitted Debt Offering Obligations in favor of the Note Secured Parties (affected thereby but only to the extent necessary to not be subject to such requirement and only for so long as required to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents this Agreement may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior First Lien Secured Note Holder or any holder of Other Pari Passu Lien ObligationsParty, to the extent necessary to release the first-priority security interests First Lien Security Interests in favor of the Collateral Agent on the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreementrelevant Permitted Debt Offering Obligations only. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiarySubsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees Permitted Debt Offering Obligations in excess of the amount then pledged without the filing with the SEC (or any other governmental agencyGovernmental Authority) of separate financial statements of such subsidiarySubsidiary, then the Equity Interests and other securities of such subsidiary shall Subsidiary will automatically be deemed to be a part of the Collateral securing for the Note Obligations in favor relevant Permitted Debt Offering Obligations. For the avoidance of the Note Secured Parties (but only doubt and notwithstanding anything to the extent necessary to not be subject to any contrary in this Agreement, nothing in this clause (d) shall limit the pledge of such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis securities from securing the Obligations and the Initial Permitted Debt Offering Obligations at all times or from securing any Permitted Debt Offering Obligations that are not in respect of securities subject to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request regulation by the Borrower and at SEC for which the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party toPermitted Debt Offering Agreement specifies, or in any way alter or modify, any obligation or liability of any Grantor with respect whose Authorized Representative elects to or arising out of the Collateral. Nothing contained in be subject to this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personparagraph.
Appears in 2 contracts
Samples: Security Agreement (Nielsen Holdings B.V.), Security Agreement (Nielsen CO B.V.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guarantees, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ixx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Asset (which Excluded Assets, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain not constitute “Article 9 Collateral”).
(b) Each Grantor hereby irrevocably authorizes the Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates; provided, however, that the right of the Collateral Agent to file financing statements hereunder shall not be construed as a duty to do so. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Each Grantor shall file on behalf of the Collateral Agent agreesAgent, upon request by for the Borrower and at benefit of the Borrower’s expenseSecured Parties, any financing statements in the relevant jurisdiction necessary to promptly furnish copies of such filings to perfect the Borrowersecurity interests in the Article 9 Collateral granted hereunder.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Pledge and Security Agreement (Sabre Corp), Pledge and Security Agreement (Sabre Corp)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any other Senior Secured Note DocumentEquity Interests in any Subsidiary of either Issuer, (c) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any Equity Interests acquired after the Closing Date in a Person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation existed at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date, to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture that is secured by a Permitted Lien), (d) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (e) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (f) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The , including providing within 30 days of any reasonable request therefor legal descriptions of real property (other than real property subject to a mortgage in favor of the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, Agent) on which timber to promptly furnish copies be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Collateral Agreement, Collateral Agreement (Verso Paper Corp.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual PropertyLetter-of-credit rights;
(xiixi) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Collateral Agent, including describing such property as "all assets" or "all property". Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Guaranteed Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, Deposit Accounts and securities accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest (other than the grant of security interest in the Pledged Stock pursuant to Section 3.01) in, and “Article 9 Collateral” shall not include, (a) any Equity Interests of any Person (except for Equity Interests of any Material Subsidiary listed on Schedule VI hereto as such schedule may be updated from time to time, that can be perfected upon the filing of a financing statement), (b) any Material Pledged Debt Securities or any other Senior Secured Note Document, the Equity Interests and other debt securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, pledged pursuant to any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with foreign pledge agreement under the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 , (c) any assets of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Subsidiary to the extent necessary to not be subject to any such financial statement requirement). In such eventthat, the Security Documents may be amended or modified, without the consent as of the Note TrusteeClosing Date, and for so long as, a pledge of such assets would violate a contractual obligation binding on such assets or such Subsidiary, (d) any assets of any Subsidiary acquired after the Collateral AgentClosing Date in accordance with the Credit Agreement if, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, and to the extent necessary to subject that, and for so long as (1) pledging such assets would violate applicable law or a contractual obligation binding on such assets or such Subsidiary and (2) such law or obligation existed at the time of the acquisition thereof or (e) any United States intent-to-use trademark applications to the Liens extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law; provided, that, upon the Security Documents such additional Equity Interests reasonable request of the Administrative Agent, Company shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (c) and (d) above, other securities. This Section 3.01(b) shall apply mutatis mutandis than those set forth in a joint venture agreement to Other Pari Passu Lien Obligationswhich the Company or any Subsidiary is a party.
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) ), continuation statements, or other filings and recordings, with respect to the Article 9 Collateral and any other collateral pledged hereunder or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, or such other information as may be required under applicable law including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filingFixtures, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral or other collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Guarantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Guarantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Chart Industries Inc), Guarantee and Collateral Agreement (Chart Industries Inc)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Note Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (B) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any other Senior Secured Note DocumentEquity Interests acquired after the Closing Date in a person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation existed at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture or any equivalent exception in any other securities Note Document that is secured by a Permitted Lien), (C) any (x) property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof (other than Section 3.01(a)(iv)) and (y) Rule 3-16 Collateral solely to the extent and with respect to the obligations described in the last paragraph of Section 3.01, (D) any direct Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, or indirect subsidiary (E) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of Holdings its right, title or interest thereunder to the extent, but only to the extent, that are owned by such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only license, contract or agreement to which such Pledgor is a party (other than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. relates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property.” Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon including providing within 30 days of any reasonable request by the Borrower and at the Borrower’s expense, therefor legal descriptions of real property (other than real property subject to promptly furnish copies a Mortgage) on which timber to be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Samples: Collateral Agreement (Verso Paper Holdings LLC), Collateral Agreement (Verso Paper LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned [[NYCORP:2304021v10:4272D:09/26/03--03:05 p]] or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual PropertyLetter-of-credit rights;
(xiixi) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Collateral Agent, including describing such property as "all assets" or "all property". Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. [[NYCORP:2304021v10:4272D:09/26/03--03:05 p]] The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)of the Credit Parties, each Grantor Credit Party hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, (wherever located, and ) now owned or at any time hereafter acquired by such Grantor Credit Party or in which such Grantor Credit Party now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesGoods;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, Instruments (including all the Pledged Debt Securities);
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment PropertyProperty (including the Pledged Equity Interests);
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xii) all Intellectual Property;
(xiii) all Commercial Tort Claims, including, without limitation, those described on Schedule IV hereto;
(1) Securities Accounts, (2) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all cash held in any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xv) all Supporting Obligations;books and Records pertaining to the Article 9 Collateral; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any motor vehicle, aircraft, airframe, rolling stock and other assets subject to a certificate of title or ownership, whether now owned or hereafter acquired, (b) any Excluded Equity Interests, (c) any Letter of Credit Rights relating to any letter of credit with a face amount not in excess of $5,000,000, except to the extent constituting a support obligation for other Collateral as to which perfection of a security interest therein can be perfected by the filing of any financing statement under the Uniform Commercial Code (or similar filing in any applicable jurisdiction), and to the extent the applicable Credit Party is not required by applicable law to apply the proceeds of a drawing of such letter of credit for a specified purpose, (d) any Credit Party’s right, title or interest in any lease, license or agreement or any other Senior Secured Note Documentproperty subject to a purchase money security interest, Financing Lease Obligation or similar arrangements to which such Credit Party is a party or any of its right, title or interest thereunder, the Equity Interests property subject thereto, any insurance in respect thereof, any management or operating agreement with respect thereto and other securities deposits made in respect thereof and all rights, title or interest in relation to any of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only foregoing, in each case, to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X a grant would, under the Securities Act (or any other law, rule or regulation) requiring separate financial statements terms of such subsidiary to be filed with lease, license or agreement, purchase money, financing lease or similar arrangement result in a breach of the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationterms of, or any other lawconstitute a default under, rule or regulation is adoptedresult in the abandonment, which would require) the filing with the SEC (invalidation or any other governmental agency) unenforceability of separate financial statements or create a right of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations termination in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without require the consent of any other party (in each case, other than a Credit Party) to, such lease, license or agreement, (e) (i) all owned real property interests with a fair market value (as reasonably determined by the Note TrusteeIssuer in good faith) equal to or less than $7,500,000; and (ii) all leasehold interests (it is understood that there shall be no requirement to obtain landlord waivers, estoppels or collateral access agreements or acknowledgements, bailee waivers and similar letters), (f)(i) payroll, healthcare and other employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) escrow, defeasance, discharge and redemption accounts, (iv) fiduciary or other trust accounts, and, in the case of clauses (i) through (iv), the Collateral Agentfunds or other property held in or maintained in such account, any Senior Secured Note Holder (v) zero-balance accounts, (vi) accounts in jurisdictions other than in the jurisdiction of organization of the applicable granting Credit Party, the United States or any holder state thereof, and (vii) accounts other than those described in the preceding clauses with respect to which the average daily balance of Other Pari Passu Lien Obligationsthe funds maintained on deposit therein does not exceed $1,000,000 in the aggregate (such accounts in this clause (f) being the “Excluded Accounts”) (g) any Commercial Tort Claim with an expected value not in excess of $1,000,000, as determined in good faith by the Issuer, (h) the Issuer’s or its subsidiaries’ rights in relation to aircraft and airframes, including rights under any lease, sublease, charter, management, operating, crew, service, repair, maintenance, storage or other agreement relating to the aircraft, rights in the aircraft and any parts, accessions and accessories thereto, rights under insurance policies and security deposits and rights in income derived from and proceeds of any of the foregoing, in the ordinary course, (i) assets if the granting of a security interest therein would result in material adverse tax consequences to any Credit Party as reasonably determined by the Issuer, (j) those assets as to which the Collateral Agent and the Issuer reasonably determine in good faith that any of the cost, burden or consequences (including adverse tax consequences) of obtaining or perfecting such a security interest in such assets is excessive in relation to the practical benefit to the Secured Parties of the security to be afforded thereby, (k) foreign intellectual property, (l) any United States “intent to use” trademark application or intent-to-use service mxxx application filed pursuant to Section 1(b) of the Lxxxxx Act, to the extent necessary and during the period that the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the cancellation of the applicable Credit Party’s right, title or interest therein or any trademark or service mxxx registration that issues as a result of such application under applicable federal law (including prior to release the firstfiling and acceptance of a “Statement of Use” or “Amendment to Allege Use” with respect thereto), after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral, (m) intellectual property specifically requiring a filing in a jurisdiction outside of the United States, (n) any assets (including interests in partnerships, joint ventures and other non-priority wholly owned entities) in respect of which and to the extent that pledges and security interests are prohibited by law or prohibited by agreements containing anti-assignment clauses not overridden by the New York UCC or other applicable law, (o) any assets and proceeds thereof subject to a Financing Lease Obligation or a purchase money lien permitted by clause 13 of the definition of “Permitted Liens” in the shares Indenture to the extent such a grant would violate or invalidate the documents providing for such Financing Lease Obligation or purchase money lien and (p) prior to the Discharge of Equity Interests ABL Obligations, any property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement); provided that clauses (b), (d), (k) or (n) shall not include (x) items to the extent the prohibition or restriction on the assignment or pledge thereof hereunder is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC, any other applicable anti-assignment provisions of the UCC or other applicable law (including without limitation Title 11 of the United States Code) or (y) proceeds from the sale, license, lease or other disposition and receivables of the assets referred to in such clause (including accounts receivable and other securities that are so monies due or to become due under or in connection therewith), the assignment of which is expressly deemed to no longer constitute part effective under Section 9-406, 9-407, 9-408, or 9-409 of the Collateral securing the Note Obligations in favor UCC, any other applicable anti-assignment provisions of the Note Secured Parties. For UCC or other applicable law notwithstanding such prohibition (the avoidance assets described in clauses (a) through (p) above, subject to the foregoing proviso, collectively, the “Excluded Assets”); provided that such exclusions shall not de facto apply to the proceeds of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties property referred to in accordance with the terms foregoing clauses (d), (k) and (n) of the Credit Agreement this Section 3.01 or in clauses (A) to and this Agreement. In the event including (I) of Section 2.01(a); provided, further, that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act no asset shall constitute an “Excluded Asset” if such asset is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities pledged to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Second Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsAgreement.
(cb) Each Grantor Credit Party hereby authorizes irrevocably authorizes, but does not obligate, the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Credit Party is an organization, the type of organization and any organizational identification number issued to such Grantor and Credit Party, (yii) in the case of a financing statement filed as a fixture filingfiling in a Uniform Commercial Code filing office, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the Security Interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, “all assets whether now owned or hereafter acquired”, or words of similar effect. Each Grantor Credit Party agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized authorized, but not obligated, to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting reflecting the Security Interest granted by each GrantorCredit Party in such Credit Party’s Patents, Trademarks and Copyrights, without the signature of any Grantorsuch Credit Party, and naming any Grantor Credit Party or the Grantors Credit Parties as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Credit Party shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerCredit Party constituting Intellectual Property.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Credit Party with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything to the contrary in this Agreement or the Indenture, (i) no perfection steps shall be construed required by any means other than (A) filings pursuant to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to Uniform Commercial Code in the following sentence) shall have any office of the dutiesSecretary of State (or equivalent filing office) of the relevant State(s) of the respective jurisdictions of organization of each Credit Party, obligations or liabilities (B) filings in the United States Patent and Trademark Office and the United States Copyright Office of a member the Intellectual Property Security Agreement, (C) delivery of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement promissory notes and instruments evidencing Indebtedness for borrowed money; provided that such delivery shall not be construed as creating required with respect to (1) promissory notes and instruments evidencing Indebtedness for borrowed money having an aggregate principal amount not in excess of $5,000,000, (2) any promissory notes and instruments evidencing Indebtedness for borrowed money that are promptly deposited into an investment or securities account, (3) checks received in the ordinary course of business and (4) promissory notes and instruments evidencing Indebtedness issued in connection with the extension of trade credit by the grantor of a partnership or joint venture among security interest, (D) delivery of Collateral consisting of certificated Equity Interests included in the Collateral to the Collateral Agent, Term Loan Agent, Term Loan Representative or any Additional Term Agent, as applicable, in accordance with the ABL/Term Loan Intercreditor Agreement and (E) other Secured Party, actions expressly required by this Agreement or the Indenture or as set forth in any Grantor and/or local law security agreement; (ii) no actions shall be required in order to create any security interest in assets located or titled outside of the United States or make enforceable any such security interest; (iii) no security shall be taken or perfected over movable plant and equipment to the extent requiring any labeling or segregation of such plant or equipment; (iv) no security shall be taken or perfected over any stock in trade to the extent this would require any item-specific or periodic listing of stock in trade or any segregation thereof; (v) no Control Agreement shall be required to be executed and delivered; (vi) no notice shall be required to be delivered to Account Debtors or other Personcontractual third parties prior to the occurrence and during the continuance of an Event of Default; and (vii) no action in addition to the filings contemplated under clause (i) above shall be required to perfect the Security Interest in any Commercial Tort Claim or Letter of Credit Right included in the Collateral.
Appears in 1 contract
Samples: Notes Pledge and Security Agreement (Lannett Co Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Secured Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all EquipmentDocuments;
(vi) all General IntangiblesEquipment;
(vii) all GoodsFixtures;
(viii) all Instruments, including General Intangibles and all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Goods;
(x) all Instruments;
(xi) all Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligationsletters of credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorMoney; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in (and the term “Collateral” shall not include) any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Excluded Assets.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time (however, the Collateral Agent shall not have any duty) to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assetsassets of the Debtor, whether now owned or hereafter acquired” of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Notwithstanding anything in this Agreement to the contrary, neither the Trustee nor the Collateral Agent agrees, upon request by shall be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the Borrower and at perfection of any security interest in the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerCollateral.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Samples: Security Agreement (Global Cash Access Holdings, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms including the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations)Guaranteed Obligations, each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Administrative Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a second-priority security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
): (i) all Accounts;
; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
Chattel Paper; (iii) all Chattel Paper;
Documents; (iv) all Documents;
Equipment and Fixtures; (v) all Equipment;
General Intangibles; (vi) all General Intangibles;
Goods; (vii) all Goods;
Instruments; (viii) all Instruments, including all Pledged Securities;
Inventory; (ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
Investment Property; (x) all Investment Property;
Letter-of-Credit Rights to the extent constituting a Supporting Obligation for other Article 9 Collateral as to which perfection of security interests in such Article 9 Collateral is accomplished solely by the filing of a UCC financing statement; (xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
; (xii) all Intellectual Property and Licenses; (xiii) all Commercial Tort Claims listed on Schedule III and on any supplement thereto received by the Administrative Agent pursuant to Section 3.03(g); and (xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to products, accessions, rents and substitutions and replacements for and products profits of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; 11 provided that, notwithstanding anything to the contrary in this Agreement, (i) this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note Document, the Equity Interests Excluded Assets and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would requireii) the filing with Article 9 Collateral (nor any defined term therein) shall not include any Excluded Assets.
(b) Subject to Section 3.01(e), each Grantor hereby irrevocably authorizes the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto and continuations thereof that (i) indicate the Collateral as “all assetsassets of the debtor, whether now existing or hereafter arising” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained ; provided that the foregoing will not limit or otherwise affect the obligations and liabilities of the Grantors to the extent set forth herein and in the other Loan Documents.
(d) Upon three (3) Business Days prior written notice (or, with respect to filings as of the Closing Date, without any such notice) to the applicable Grantor, the Administrative Agent is authorized to file with the USPTO or the USCO (or any successor office) additional documents (including any Intellectual Property Security Agreements and/or supplements thereto) as may be necessary for the purpose of perfecting, confirming, continuing, enforcing (subject to the terms of the Intercreditor Agreements) or protecting the Security Interest in the Registered Intellectual Property Collateral of each Grantor in which a security interest has been granted by each Grantor, and naming any Grantor as debtor and the Administrative Agent as secured party.
(e) Notwithstanding anything to the contrary in the Loan Documents, none of the Grantors shall be required, nor is the Administrative Agent authorized, (i) to perfect the Security Interests granted by this Agreement shall be construed (including Security Interests in Investment Property and Fixtures) by any means other than by (A) filings pursuant to make the UCC in the office of the secretary of state (or similar central filing office) of the relevant State(s), and filings in the applicable real estate records with respect to any fixtures relating to Mortgaged Property to the extent required by the Collateral and Guarantee Requirement, (B) filings in United States government offices with respect to Intellectual Property of Grantor as expressly required elsewhere herein, (C) delivery to the Administrative Agent to be held in its possession of all Collateral consisting of Instruments or certificated Pledged Collateral as expressly required and subject to the limitations specified elsewhere herein or (D) other methods expressly provided herein, (ii) to enter into any deposit account control agreement, securities account control agreement or any other Secured Party liable as a member of control agreement with respect to any limited liability company deposit account, securities account or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party Collateral that requires perfection by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.12 “control,”
Appears in 1 contract
Samples: Second Lien Security Agreement
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)of the Credit Parties, each Grantor Credit Party hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, (wherever located, and ) now owned or at any time hereafter acquired by such Grantor Credit Party or in which such Grantor Credit Party now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesGoods;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, Instruments (including all the Pledged Debt Securities);
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment PropertyProperty (including the Pledged Equity Interests);
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xii) all Intellectual Property;
(xiii) all Commercial Tort Claims, including, without limitation, those described on Schedule IV hereto;
(1) Securities Accounts, (2) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all cash held in any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xv) all Supporting Obligations;books and Records pertaining to the Article 9 Collateral; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any motor vehicle, aircraft, airframe, rolling stock and other assets subject to a certificate of title or ownership, whether now owned or hereafter acquired, (b) any Excluded Equity Interests, (c) any Letter of Credit Rights relating to any Letter of Credit with a face amount not in excess of $5,000,000, except to the extent constituting a support obligation for other Collateral as to which perfection of a security interest therein can be perfected by the filing of Uniform Commercial Code (or similar filing in any applicable jurisdiction), and to the extent such Credit Party is not required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (d) any Credit Party’s right, title or interest in any lease, license or agreement or any other Senior Secured Note Documentproperty subject to a purchase money security interest, Capital Lease Obligation or similar arrangements to which such Credit Party is a party or any of its right, title or interest thereunder, the Equity Interests property subject thereto, any insurance in respect thereof, any management or operating agreement with respect thereto and other securities deposits made in respect thereof and all rights, title or interest in relation to any of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only foregoing, in each case, to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X a grant would, under the Securities Act (or any other law, rule or regulation) requiring separate financial statements terms of such subsidiary to be filed with lease, license or agreement, purchase money, capital lease or similar arrangement result in a breach of the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationterms of, or any other lawconstitute a default under, rule or regulation is adoptedresult in the abandonment, which would require) the filing with the SEC (invalidation or any other governmental agency) unenforceability of separate financial statements or create a right of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations termination in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without require the consent of any other party (in each case, other than a Credit Party) to, such lease, license or agreement, (e) (i) all owned real property; and (ii) all leasehold interests (it is understood that there shall be no requirement to obtain landlord waivers, estoppels or collateral access agreements or acknowledgements, bailee waivers and similar letters), (f)(i) payroll, healthcare and other employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) escrow, defeasance, discharge and redemption accounts, (iv) fiduciary or other trust accounts, and, in the Note Trusteecase of clauses (i) through (iv), the Collateral Agentfunds or other property held in or maintained in such account, any Senior Secured Note Holder (v) zero-balance accounts, (vi) accounts in jurisdictions other than in the jurisdiction of organization of the applicable granting Credit Party, the United States or any holder state thereof, and (vii) accounts other than those described in the preceding clauses with respect to which the average daily balance of Other Pari Passu Lien Obligationsthe funds maintained on deposit therein does not exceed $1,000,000 in the aggregate; provided that, no DDAs shall constitute Excluded Assets (such accounts in this clause (f) being the “Excluded Accounts”) (g) any Commercial Tort Claim with an expected value not in excess of $1,000,000, as determined in good faith by the Parent Borrower, (h) the Parent Borrower’s or its subsidiaries’ rights in relation to aircraft and airframes, including rights under any lease, sublease, charter, management, operating, crew, service, repair, maintenance, storage or other agreement relating to the aircraft, rights in the aircraft and any parts, accessions and accessories thereto, rights under insurance policies and security deposits and rights in income derived from and proceeds of any of the foregoing, in the ordinary course, (i) assets if the granting of a security interest therein would result in material adverse tax consequences to any Credit Party as reasonably determined by the Parent Borrower, (j) those assets as to which the Collateral Agent and the Parent Borrower reasonably determine in good faith that any of the cost, burden or consequences (including adverse tax consequences) of obtaining or perfecting such a security interest in such assets is excessive in relation to the practical benefit to the Secured Parties of the security to be afforded thereby, (k) foreign intellectual property, (l) any United States “intent to use” trademark application or intent-to-use service mxxx application filed pursuant to Section 1(b) of the Lxxxxx Act, to the extent necessary and during the period that the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the cancellation of the applicable Credit Party’s right, title or interest therein or any trademark or service mxxx registration that issues as a result of such application under applicable federal law (including prior to release the firstfiling and acceptance of a “Statement of Use” or “Amendment to Allege Use” with respect thereto), after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral, (m) intellectual property specifically requiring a filing in a jurisdiction outside of the United States, (n) any assets (including interests in partnerships, joint ventures and other non-priority wholly owned entities) in respect of which and to the extent that pledges and security interests in are prohibited by law or prohibited by agreements containing anti-assignment clauses not overridden by the shares of Equity Interests New York UCC or other applicable law, (o) any assets and other securities that are so deemed proceeds thereof subject to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms a Capital Lease Obligation or a purchase money lien permitted by Section 6.2(ll) of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary such a grant would violate or invalidate the documents providing for such Capital Lease Obligation or purchase money lien and (p) prior to not be subject to any such financial statement requirementthe Discharge of Term Loan Collateral Obligations (as defined in the ABL/Term Loan Intercreditor Agreement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement); provided that clauses (b), (d), (k) or any holder of Other Pari Passu Lien Obligations, (n) shall not include (x) items to the extent necessary the prohibition or restriction on the assignment or pledge thereof hereunder is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC, any other applicable anti-assignment provisions of the UCC or other applicable law (including without limitation Title 11 of the United States Code) or (y) proceeds from the sale, license, lease or other disposition and receivables of the assets referred to in such clause (including Accounts and other monies due or to become due under or in connection therewith), the assignment of which is expressly deemed effective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC, any other applicable anti-assignment provisions of the UCC or other applicable law notwithstanding such prohibition (the assets described in clauses (a) through (p) above, subject to the Liens under foregoing proviso, collectively, the Security Documents “Excluded Assets”); provided that such additional Equity Interests exclusions shall not de facto apply to the proceeds of any of the property referred to in the foregoing clauses (d), (k) and other securities. This (n) of this Section 3.01(b3.01 or in clauses (A) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsand including (I) of Section 2.01(a).
(cb) Each Grantor Credit Party hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Credit Party is an organization, the type of organization and any organizational identification number issued to such Grantor and Credit Party, (yii) in the case of a financing statement filed as a fixture filingfiling in a Uniform Commercial Code filing office, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the Security Interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, “all assets whether now owned or hereafter acquired”, or words of similar effect. Each Grantor Credit Party agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting reflecting the Security Interest granted by each Grantor, without the signature of any GrantorCredit Party, and naming any Grantor Credit Party or the Grantors Credit Parties as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Credit Party shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerCredit Party constituting Intellectual Property.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Credit Party with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything to the contrary in this Agreement or the Credit Agreement, (i) no perfection steps shall be construed required by any means other than (A) filings pursuant to make the Uniform Commercial Code in the office of the Secretary of State (or equivalent filing office) of the relevant State(s) of the respective jurisdictions of organization of each Credit Party, (B) filings in the United States Patent and Trademark Office and the United States Copyright Office of the Intellectual Property Security Agreement, (C) delivery of Collateral consisting of promissory notes and instruments evidencing Indebtedness for borrowed money; provided that such delivery shall not be required with respect to (1) promissory notes and instruments evidencing Indebtedness for borrowed money having an aggregate principal amount not in excess of $5,000,000, (2) any promissory notes and instruments evidencing Indebtedness for borrowed money that are promptly deposited into an investment or securities account, (3) checks received in the ordinary course of business and (4) promissory notes and instruments evidencing Indebtedness issued in connection with the extension of trade credit by the grantor of a security interest, (D) delivery of Collateral consisting of certificated Equity Interests included in the Collateral Agent to Collateral Agent, Term Loan Agent, Term Loan Representative or any Additional Term Agent, as applicable, in accordance with the ABL/Term Loan Intercreditor Agreement and (E) other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party actions expressly required by virtue of this Agreement or otherwise the Credit Agreement or as set forth in any local law security agreement; (except as referred ii) no actions shall be required in order to create any security interest in assets located or titled outside of the United States or make enforceable any such security interest; (iii) no security shall be taken or perfected over movable plant and equipment to the extent requiring any labeling or segregation of such plant or equipment; (iv) no security shall be taken or perfected over any stock in trade to the extent this would require any item-specific or periodic listing of stock in trade or any segregation thereof; (v) no Control Agreement shall be required to be executed and delivered with respect to any Excluded Account; (vi) no notice shall be required to be delivered to Account Debtors or other contractual third parties prior to the occurrence and during the continuance of an Event of Default; and (vii) no action in addition to the filings contemplated under clause (i) above shall be required to perfect the Security Interest in any Commercial Tort Claim or Letter of Credit Right included in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCollateral.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including each Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all EquipmentGeneral Intangibles and Permits;
(vi) all General IntangiblesInstruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xivx) all letters of credit under which such Grantor is the beneficiary and Letter of Goods;
(xi) all Letter-of-Credit Rights;
(xvxii) all Commercial Tort Claims described on Schedule III from time to time;
(xiii) the Cash Collateral Account (and all cash, securities and other investments deposited therein);
(xiv) all Supporting Obligations;
(xvixv) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit Security Entitlements in any or all of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in (A) motor vehicles the perfection of a security interest in which is excluded from the UCC in the relevant jurisdiction, (B) any other Senior Secured Note DocumentEquity Interests in any Unrestricted Subsidiary (until such time any Unrestricted Subsidiary becomes a Restricted Subsidiary in accordance with the Credit Agreement, at which time, and without further action, this clause (B) shall no longer apply to the Equity Interests and other securities of such Subsidiary), (C) any Equity Interests of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Subsidiary acquired pursuant to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary a Permitted Acquisition financed with Indebtedness incurred pursuant to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agencySection 7.03(g) of separate financial statements of any subsidiary of Holdings due to the fact Credit Agreement; provided that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of any such subsidiary Subsidiary shall automatically be deemed not cease to be part excluded by this clause (C) if such secured Indebtedness is repaid or becomes unsecured or if such Subsidiary ceases to Guarantee such secured Indebtedness, as applicable, (D) more than 65% of the Collateral securing issued and outstanding Equity Interests of any Foreign Subsidiary, (E) any specifically identified asset with respect to which the Note Obligations Administrative Agent has confirmed in favor writing to the Borrower its determination that the costs or other consequences (including adverse tax consequences) of providing a security interest is excessive in view of the Note Secured Parties benefits to be obtained by the Lenders or (F) any General Intangible, Investment Property, Permit or other such rights of a Grantor arising under any contract, lease, instrument, license (including FCC Licenses, in which a security interest is prohibited by applicable law), or other document if (but only to the extent necessary to not be subject to that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such requirement) (any such Equity Interests General Intangible, Investment Property or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations rights in favor of the Note Secured Parties. For a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such Equity Interests contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided however, that the limitation set forth in clause (F) above shall remain not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral securing to the Loan Obligations extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the UCC. Each Grantor shall, if requested to do so by the Administrative Agent, use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable with respect to Collateral which the Administrative Agent reasonably determines to be material.
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guarantee of each Grantor, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinDeposit Accounts;
(iii) all Securities Accounts;
(iv) all Chattel Paper;
(ivv) all Documents;
(vvi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ixx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xixii) all books and records pertaining to the Article 9 Collateral;
(xiii) all Fixtures;
(xiv) all letter-of-credit rights, but only to the extent constituting a supporting obligation for other Article 9 Collateral as to which perfection of security interests in such Article 9 Collateral is accomplished solely by the filing of a UCC financing statement;
(xv) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash Commercial Tort Claims listed on Schedule 9 to the Perfection Certificate and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of supplement thereto received by the foregoing;
(xviii) all other personal property whatsoever of such GrantorAdministrative Agent pursuant to Section 3.03(e); and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Asset.
(b) Subject to Section 3.01(e), each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturityof its Secured Obligations, by acceleration or otherwise) of including pursuant to the Loan Obligations (other than contingent obligations)Guaranty, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures (but only to the extent such Fixtures constitute property in which a security interest may be created under the New York UCC);
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Instruments;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided, that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset or any other Senior Secured Note Document, Excluded Security.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Samples: Pledge and Security Agreement (Axcan Intermediate Holdings Inc.)
Security Interest. (a) As security for the To secure prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) performance of the Obligations (other than contingent obligationsas defined below), each Grantor the Company hereby pledges pledges, assigns, transfers and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a continuing security interest in all rightproperties, title or interest in or to any assets and all rights of the following assets and properties in each case whether tangible or intangible, wherever located, and Company now owned or at any time hereafter acquired by such Grantor the Company or in which such Grantor the Company now has or at any time in the future may acquire any right, title or interest interest, wherever located or situated (but excluding any Excluded Collateralhereinafter, collectively, collectively called the “Collateral”):). Without limitation of the foregoing, the Collateral includes, among all the assets of the Company, the following:
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAs-Extracted Collateral;
(iii) all Chattel Paper;
(iv) all Commercial Tort Claims;
v) all Consignments;
vi) all Contracts;
vii) all Copyrights;
viii) all Copyright Licenses;
ix) all Deposit Accounts; x) all Documents;
(vxi) all Encumbrance(s);
xii) all Equipment;
(vixiii) all Fixtures;
xiv) all Goods;
xv) all General Intangibles;
(viixvi) all GoodsHealth-Care-Insurance Receivables;
(viiixvii) all Instruments, including all Pledged Securities;
(ixxviii) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxix) all Investment Property;
(xixx) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Letter-of-Credit Rights;
(xvxxi) all Letters of Credit;
xxii) all Patents;
xxiii) all Patent Licenses;
xxiv) all Payment Intangibles;
xxv) all Promissory Note(s);
xxvii) all Supporting Obligations;
(xvixxviii) all cash and cash equivalentsTangible Chattel Paper;
(xviixxix) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoingTrademarks;
(xviiixxx) all other personal property whatsoever of such GrantorTrademark Licenses;
xxxi) all Vehicles; and
(xixxxxii) to the extent not otherwise included, all ProceedsProceeds (including condemnation proceeds), all accessions to Accessions and additions thereto and all substitutions and replacements for therefore and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything The Company expressly acknowledges that the security interest granted hereunder shall remain as security for payment and performance of the Obligations, whether now existing or which may hereafter be incurred by future advances, or otherwise. The notice of the continuing grant of this security interest therefore shall not be required to be stated on the face of any document representing any such Obligations, nor otherwise identify it as being secured hereby. The security interest granted herein to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations Party is for the ratable benefit of Senior Secured Note all Holders only and each Holder may realize upon the Collateral to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other lawits Note Percentage, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and as computed from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code time. The amount of each applicable jurisdiction for Holder’s “Note Percentage” shall be the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, percentage computed by dividing the type of organization and any organizational identification number issued Obligations owed to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request Holder by the Borrower and at the Borrower’s expense, aggregate Obligations owed to promptly furnish copies of such filings to the Borrowerall Holders.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Samples: Loan and Security Agreement (Starinvest Group, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)U.S. Secured Obligations, each Grantor hereby confirms the pledge collaterally assigns and grant pledges to the Collateral Security Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Security Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest” ) in, all right, title and interest in, to or interest in or to under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including, without limitation, all Tangible Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinElectronic Chattel Paper);
(iii) all Chattel Papercash and all Deposit Accounts and all monies deposited therein;
(iv) all DocumentsEquipment (including all Fixtures);
(v) all EquipmentDocuments;
(vi) all General IntangiblesIntangibles (including Intellectual Property);
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory Investment Property (including all Commodities Contracts, Commodities Accounts, Securities and Securities Accounts and Security Entitlements or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryFinancial Assets credited thereto);
(x) all Investment PropertyLetter of Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xi) all Intellectual PropertyCommercial Tort Claims described on Schedule IV, as such Schedule may be supplemented from time to time;
(xii) Contracts, together with all Pledged CollateralContract Rights arising thereunder;
(xiii) all Records and all books and records pertaining to the CollateralGoods;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvixv) all cash books and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of Records pertaining to the foregoing;
(xviii) all other personal property whatsoever of such GrantorArticle 9 Collateral; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to products and substitutions and replacements for and products of any and all Proceeds of the foregoing (including, without limitation, all insurance and all offsprings, rents profits and products of any claims for insurance effected or held for the benefit of the foregoing Grantors or the Secured Parties in respect thereof and all collateral security and guarantees given by any person Person with respect to any of the foregoing).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Security Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings with respect to Fixtures appurtenant to any Mortgaged Property) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or other applicable law of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filingfiling or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Security Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Security Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Security Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Security Agent as secured party. The Collateral Agent agreesEach Grantor will pay any applicable filing fees, upon request by the Borrower recordation taxes and at the Borrower’s expense, related expenses relating to promptly furnish copies of such filings to the Borrowerits Collateral.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Security Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Samples: Abl Credit Agreement (Smurfit Stone Container Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)including the Guaranty, each Grantor hereby confirms the pledge mortgages and grant pledges to the Bridge Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Bridge Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment and Fixtures;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property and Licenses;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent constituting ABL Priority Collateral, Deposit Accounts, Securities Accounts, all cash, Money, Securities and other investments therein, and all Security Entitlements in respect thereof; and
(xiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Property; provided, however, that “Excluded Property” shall not include any Proceeds, substitutions or any other Senior Secured Note Document, the Equity Interests and other securities replacements of any direct Excluded Property unless such Proceeds, substitutions or indirect subsidiary of Holdings that are owned by any replacements would independently constitute Excluded Property.
(b) Each Grantor will constitute hereby irrevocably authorizes the Bridge Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Bridge Collateral or any part thereof and amendments thereto that (i) indicate the Bridge Collateral as “all assets” assets of such Grantor or words of similar effecteffect or being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if applicable, any organizational identification number or incorporation number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Bridge Collateral relates. Each Grantor agrees to provide such information to the Bridge Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Bridge Collateral Agent is further irrevocably authorized to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor officeoffice thereof) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing perfecting or protecting confirming the Security Interest granted by each Grantor, with notice to each, but without the signature of any Grantorany, Grantor (only if such signature cannot reasonably be obtained by the Bridge Collateral Agent), and naming any Grantor or the Grantors as debtors and the Bridge Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Bridge Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, Cash Equivalents, Deposit Accounts, Securities Accounts and Commodities Accounts (including securities entitlements and related assets);
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents other Goods and other written materials related to the purchase or import of any InventoryFixtures;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(c);
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that in no event shall the Security Interest attach to any Excluded Assets; provided, however, that the Security Interest shall immediately attach to, and the Article 9 Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be an Excluded Asset.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interests in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required in the applicable jurisdiction, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written the Collateral Agent’s reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent (or its designee) is further authorized to file with the United States Patent USCO and Trademark Office or United States Copyright Office the USPTO (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in United States Intellectual Property constituting Article 9 Collateral and granted hereunder by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, No Grantor shall be required to promptly furnish copies of such complete any filings or other action with respect to the Borrowerperfection of the Security Interests created hereby in any Intellectual Property subsisting in any jurisdiction outside of the United States.
(ed) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guaranty, each Grantor hereby confirms the pledge mortgages and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Agent for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims described in Schedule II as supplemented from time to time;
(iv) all Documents;
(v) all EquipmentEquipment and Fixtures;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Intellectual Property;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetters of Credit and Letter-of-Credit Rights;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing foregoing, all supporting obligations and all offsprings, rents profits and products of any of the foregoing and all other collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; and provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Property; provided, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings however, that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such eventProperty” shall not include any Proceeds (including, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For for the avoidance of doubt, any Proceeds constituting cash), substitutions or replacements of any Excluded Property unless such Equity Interests shall remain Proceeds, substitutions or replacements would independently constitute Excluded Property. US-DOCS\98864089.6
(b) Each Grantor hereby irrevocably authorizes the Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments (including continuations) thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect or being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if applicable, any organizational identification number or incorporation number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further irrevocably authorized to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor officeoffice thereof) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing perfecting or protecting confirming the Security Interest granted by each Grantor, with notice to each, but without the signature of any Grantorany, Grantor (only if such signature cannot reasonably be obtained by the Collateral Agent and each Grantor hereby agrees to provide such signatures upon request of the Collateral Agent), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Samples: Credit Agreement (W R Grace & Co)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Second Lien Secured Obligations, including the Guarantees, subject to the terms of the Intercreditor Agreements, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Second Lien Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Second Lien Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Second Lien Agent, its successors and permitted assigns, for the ratable benefit of the Second Lien Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Propertybooks and records pertaining to the Article 9 Collateral;
(xii) all Pledged CollateralFixtures;
(xiii) all Records and all books and records pertaining to the CollateralLetter-of-Credit Rights;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsIntellectual Property;
(xv) all Supporting Obligations;
(xvi) all cash Commercial Tort Claims listed on Schedule III and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of supplement thereto received by the foregoing;
(xviii) all other personal property whatsoever of such GrantorSecond Lien Agent pursuant to Section 3.03(g); and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Assets and the term “Article 9 Collateral” shall not include any Excluded Assets.
(b) In furtherance of Section 5.5(b) of the ABL Intercreditor Agreement and at all times prior to the Discharge of ABL Obligations, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations as security for the benefit payment or performance, as the case may be, in full of Senior the Second Lien Secured Note Holders only Obligations, each Grantor hereby grants to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral ABL Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligationsits successors and permitted assigns, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Second Lien Agent and the other Second Lien Secured Parties Parties, a security interest in accordance with the terms all of the Credit Agreement such Grantor’s right, title and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X interest in, to and under the Deposit Accounts and Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsAccounts constituting Collateral.
(c) Each Subject to the terms of the Intercreditor Agreements, each Grantor agrees that, in the event any Grantor, pursuant to any ABL Loan Document (as defined in the ABL Intercreditor Agreement), takes any action to grant or perfect a Lien in favor of the ABL Agent in any assets, such Grantor shall also take such action to grant or perfect a Lien (subject to the ABL Intercreditor Agreement and other than the granting of “control” (as defined in the UCC) over any Deposit Accounts or Securities Accounts ) in favor of the Second Lien Agent to secure the Second Lien Secured Obligations without request of the Second Lien Agent, including with respect to any property and real property in which the ABL Agent directs a Grantor to grant or perfect a Lien or take such other action under any ABL Loan Document.
(d) Subject to Section 3.01(g), each Grantor hereby irrevocably authorizes the Collateral Second Lien Agent for the benefit of the Second Lien Secured Parties (but the Second Lien Agent shall be under no obligation to do so) at any time and from time to time to file in any relevant jurisdiction jurisdiction, in the event such Grantor fails to do in the first instance, any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Second Lien Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Second Lien Agent or any other Second Lien Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may beapplicable, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor Credit Party hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Credit Party or in which such Grantor Credit Party now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) the Deposit Accounts and all Accountscash or other assets or proceeds deposited therein;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAgency Collateral;
(iii) all Chattel PaperMSR Assets, whether or not yet accrued, earned, due or payable, as well as all other present and future rights and interests of the Credit Parties in MSR Assets;
(iv) all DocumentsIncome in respect of the MSR Assets;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xiivi) all Pledged CollateralContracts and all Contract Rights;
(xiiivii) all Records and the “commercial tort claims” (as defined in the UCC) specified on Schedule IV;
(viii) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixix) to the extent not otherwise includedincluded above, any and all other Property held at any time by any of the Credit Parties;
(x) all “accounts,” “chattel paper,” “documents,” “equipment,” “fixtures,” “general intangibles,” “goods,” “instruments,” “inventory,” “investment property,” “letter of credit rights” and “securities accounts” as each of those terms is defined in the UCC and all cash and Cash Equivalents and all products and proceeds relating to or constituting any or all of the foregoing; and
(xi) to the extent not otherwise included above, all Proceeds, other assets of each Credit Party (other than Excluded Assets) and all accessions to and substitutions and replacements for proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of accessions (as such term is defined in the UCC) to any of the foregoing and all foregoing, collateral security security, supporting obligations and guarantees given by any person Person with respect to any of the foregoing.. Notwithstanding the foregoing, neither the Article 9 Collateral nor the Pledged Securities shall include the following (collectively, the “Excluded Assets”):
(bi) Notwithstanding anything any obligation or property of any kind due from, owed by or belonging to any Sanctioned Person,
(ii) any assets that are subject to a purchase money lien or capital lease permitted under the Credit Agreement to the contrary extent the documents relating to such purchase money lien or capital lease would not permit such assets to be subject to the Security Interests created hereby or the grant or perfection of additional Lien would result in a breach or termination of, or constitutes a default under, the documentation governing such Liens or the obligations secured by such Liens,
(iii) any lease, license or other contract, including, without limitation, all Collateral Transaction Documents, if the grant of a security interest therein under the terms thereof or under applicable law, rule or regulation, is prohibited, or would give any other party thereto (other than a Credit Party) the right to terminate such lease, license or other contract,
(iv) any tangible or intangible asset if (but only to the extent that) the grant of a security interest therein would be prohibited by applicable law, rule or regulation, and binding judicial interpretations in connection therewith,
(v) motor vehicles;
(vi) Excluded Property,
(vii) any United States federal intent-to-use Trademark or service mxxx application prior to the filing of a statement or use or amendment to allege use, or any other intellectual property, to the extent that applicable law or regulation prohibits the creation of a security interest or would otherwise result in the loss of rights from the creation of such security interest or from the assignment of such rights upon the occurrence and continuance of a Default or Event of Default;
(viii) those assets (including, without limitation, MSR Assets) as to which both the Administrative Agent and the Borrower reasonably determine that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby;
(ix) all Equity Interests in any Excluded Subsidiary described in clauses (a) through (c) of such definition;
(x) with respect to any Fxxxxx Mae Designated Loans, any MSR Assets and other assets of WDLLC and WD Capital expressly excluded from the definition of Fxxxxx Mxx Collateral pursuant to the provisions of Section 8.01(a) or otherwise under any applicable Agency Consent provided by Fxxxxx Mae (but only as and to the limited extent, and only for so long as, any such assets are expressly excluded);
(xi) with respect to any Fxxxxxx Mac Designated Loans, all Excluded Fxxxxxx Mac-Related Assets;
(xii) with respect to any Gxxxxx Mxx Designated Loans, any MSR Assets and other assets of WDLLC and WD Capital expressly excluded from the definition of Gxxxxx Mxx Collateral pursuant to the provisions of Section 8.03(a) or otherwise under any applicable Agency Consent provided by Gxxxxx Mae (but only as and to the limited extent, and only for so long as, any such assets are expressly excluded); and
(xiii) any Equity Interests of each First Tier Foreign Subsidiary in excess of 65% of the outstanding Voting Equity Interests and 100% of the non-Voting Equity Interests of each such First Tier Foreign Subsidiary; provided, that the exclusions in clauses (ii), (iii), and (iv) shall not apply to the extent that, and for so long as (x) such prohibition or restriction is not enforceable or is otherwise ineffective under Applicable Law (including the UCC) or (y) consent to such security interest has been obtained from any applicable third party; provided that (1) nothing in this Agreement or any other Senior Secured Note DocumentLoan Document shall affect, limit, restrict or impair the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned grant by any Grantor will constitute Collateral securing Note Obligations for the benefit Credit Party of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees a Security Interest in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (any corresponding account or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests corresponding money or other securitiesamounts due and payable to any Credit Party or to become due and payable to any Credit Party under any lease, “Excluded Note Collateral”instrument, contract or agreement, a security interest in which is prohibited or restricted as described in clauses (ii). In , (iii) or (iv) above, unless such eventsecurity interest in such corresponding account, the Security Documents may be amended money or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder other amount due and payable is also specifically prohibited or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with restricted by the terms of the Credit Agreement such lease, instrument, contract or other agreement or such security interest in such corresponding account, money or other amount due and this Agreement. In the event that Rule 3-10 payable would expressly constitute a default under or Rule 3-16 of Regulation S-X would expressly grant a party a termination right under the Securities Act any such lease, instrument, contract or agreement governing such right unless, in each case, (x) such prohibition is amended, modified or interpreted by the SEC to permit (not enforceable or is replaced with another rule otherwise ineffective under Applicable Law (including the UCC) or regulation(y) consent to such security interest has been obtained from any applicable third party; and (2) the Security Interests granted herein shall immediately and automatically attach to and the term “Collateral” shall immediately and automatically include the rights under any such lease, instrument, contract or agreement and in any corresponding account, money, or other amounts due and payable to any other lawCredit Party at such time as such prohibition, rule restriction, event of default or regulation termination right terminates or is adopted, which would permitwaived or consent to such security interest has been obtained from any applicable third party;
(b) such subsidiary’s Equity Interests and other securities Pursuant to secure the Senior Secured Notes and/or the related guarantees in excess Section 9-509 of the amount then pledged without the filing with the SEC (or UCC and any other governmental agency) of separate financial statements of such subsidiaryApplicable Law, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor each Credit Party hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assetsassets other than Excluded Assets” of such Grantor Credit Party or words of such other similar effect, description and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor Credit Party is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) Credit Party, in each case so long as such financing statements also contain any language required to be contained therein pursuant to the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesAgency Consents. Each Grantor Credit Party agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral authorization granted in this Section 4.01 does not in any way limit the obligations of the Credit Parties set forth in Sections 4.01(e) and 4.03(d). Each Credit Party also ratifies its authorization for the Administrative Agent agreesto file in any relevant jurisdictions any financing statements (including fixture filings, upon request as applicable) or other appropriate filings, recordings or registrations or amendments thereto. On or prior to the Closing Date, each Credit Party shall indicate on their respective internal records that the Administrative Agent, on behalf of the Secured Parties, has acquired a security interest therein as provided in this Agreement.
(c) Subject to Section 6.19 of the Credit Agreement, on or before the Closing Date (or promptly but in no event more than twenty (20) days after the date of acquisition thereof if acquired after the Closing Date), the related Credit Party shall provide to the Administrative Agent:
(i) in the case of MSR Assets related to an Agency Contract, an Agency Consent, duly executed by the Borrower Administrative Agent, Lenders, the applicable Credit Party and at the Borrower’s expenserelated Agency; and
(ii) in the case of any MSR Assets (or Deposit Accounts permitted pursuant to Article 8 hereunder with respect to Agency Collateral): (A) a Deposit Account Control Agreement for the Deposit Accounts into which all related Income shall be deposited in accordance with Section 4.06(a), to promptly furnish copies of such filings reasonably acceptable to the BorrowerAdministrative Agent and duly executed by the related parties, and (B) in cases where the applicable Credit Party receives payments directly from the obligors on the related Mortgage Loans, an agreement with the lock box/clearing account bank into which such payments are made, pursuant to which such lock box/clearing account bank agrees to sweep all Income related to such Mortgage Loans into a Deposit Account described in clause (A) of this Section 4.01(c)(ii).
(d) Each Credit Party shall, from time to time, at its expense, execute, deliver, file and record all statements, continuation statements, amendments, specific assignments or other instruments or documents and take any other action that may be necessary, or that the Administrative Agent or the Required Lenders, may reasonably request, to create, evidence, preserve, perfect or validate the Security Interest or to enable such requesting party to exercise and enforce its rights hereunder and under the Credit Agreement with respect to any of the Collateral.
(e) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorCredit Party, without the signature of any GrantorCredit Party, and naming any Grantor Credit Party or the Grantors Credit Parties as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ef) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Credit Party with respect to or arising out of the Collateral. Nothing contained Collateral and notwithstanding anything in this Agreement or any Loan Document to the contrary, (i) each Credit Party shall be construed remain liable to make perform all of its duties and obligations under the contracts and agreements included in the Collateral to the same extent as if this Agreement had not been executed, (ii) the exercise by the Administrative Agent or any other Secured Party liable as a member of any limited of the rights hereunder shall not release any Credit Party from any of its duties or obligations under the contracts and agreements included in the Collateral, (iii) the Administrative Agent and each other Secured Party shall not have any obligation or liability company under the contracts and agreements included in the Collateral by reason of this Agreement, and shall not be obligated to perform any of the obligations or as a partner duties of any partnershipCredit Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder, and (iv) neither the Collateral Administrative Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations liability in contract or liabilities of a member of tort for any limited liability company Credit Party’s acts or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personomissions.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Walker & Dunlop, Inc.)
Security Interest. (a) 3.1 As security for the prompt, complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Lender a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and such Borrower’s personal property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in acquired, including the future may acquire any right, title or interest following (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) all Accounts;
Goods; (iij) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
; and (xiik) all Pledged Collateral;
(xiii) all Records other tangible and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other intangible personal property whatsoever of such GrantorBorrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, such Borrower and wherever located; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Documentforegoing, the Equity Interests so long as and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests the terms and other securities can secure conditions of the Senior Secured Notes and/or Royalty Agreements prohibit a Borrower from granting a security interest in the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act Royalty Collateral to Lender (or so long as a default under any other lawRoyalty Agreement would result from such grant to Lender), rule or regulationthe grant of security interest under this Agreement shall not extend to and the term “Collateral” shall not include (i) requiring separate financial statements the Royalty Collateral and (ii) any deposit accounts of such subsidiary Borrower that are subject to be filed with the SEC Royalty Lockbox Agreement and are dedicated exclusively to the receipt of royalty payments resulting from the license of the DepoDur and DepoCyt products (or any other governmental agencysuch deposit accounts, the “Royalty Deposit Accounts”). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended; provided, modified or interpreted by the SEC to require however, if (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would requirex) the filing with Royalty Agreements are terminated or (y) the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due Royalty Agreements are amended to permit such Borrower to grant a security interest in the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesRoyalty Collateral to Lender, then the Equity Interests and other securities grant of such subsidiary security interest under this Agreement shall automatically be deemed extend to, and the term “Collateral” shall automatically include, the Royalty Collateral and the Royalty Deposit Accounts. Further, notwithstanding any provision in this Agreement to the contrary, the grant of security interest herein shall not extend to be part and the term “Collateral” shall not include (all of the following, together with the Royalty Collateral securing and the Note Obligations in favor Royalty Deposit Accounts, the “Excluded Assets”): (i) more than 65% of the Note Secured Parties (but only to issued and outstanding voting capital stock of any Subsidiary of Borrower that is incorporated or organized in a jurisdiction other than the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder United States or any holder of Other Pari Passu Lien Obligationsstate or territory thereof, to the extent necessary to release the first-priority that Lender’s taking a security interests interest in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements more than 65% of such subsidiarystock would cause Borrower to incur adverse tax consequences, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain any “intent-to-use” trademarks at all times prior to the information required first use thereof, whether by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organizationactual use thereof in commerce, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or United States Copyright Office otherwise, and (iii) any license or contract to the extent and only to the extent that the granting of a security interest in such license or contract is expressly prohibited by any successor office) applicable statute, law, or regulation, or would constitute a default under or a breach of such documents license or contract, as may be necessary for applicable, but only to the purpose extent that such prohibition or default is enforceable under applicable law (including without limitation Sections 9406, 9407 and 9408 of perfecting, confirming, continuing, enforcing the UCC); provided that upon the termination or protecting the Security Interest granted by each Grantor, without the signature expiration of any Grantorsuch prohibition, and naming any Grantor such license or the Grantors contract, as debtors and the Collateral Agent as secured party. The Collateral Agent agreesapplicable, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings shall automatically be subject to the Borrower.
(e) The Security Interest is security interest granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability favor of any Grantor with respect to or arising out Lender hereunder and become part of the “Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person”.
Appears in 1 contract
Samples: Loan and Security Agreement (Pacira Pharmaceuticals, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in in, or to or under which such Grantor now has or at any time in the future hereafter may acquire any right, title or interest interest, regardless of where located (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperMoney and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents other Goods and other written materials related to the purchase or import of any InventoryFixtures;
(x) all Investment Property;
(xi) all Intellectual PropertyLetters of Credit and Letter-of-Credit Rights;
(xii) all Pledged CollateralSupporting Obligations;
(xiii) all Records Commercial Tort Claims specifically described on Schedule 12 to the Perfection Certificate, as such schedule may be supplemented from time to time (it being understood such Schedule 12 shall be deemed supplemented by any reference to any Commercial Tort Claim (and the description thereof) contained in a Supplemental Perfection Certificate or pursuant to Section 4.04(e) of this Agreement);
(xiv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxv) to the extent not otherwise included, all Proceedsother personal property of such Grantor, whether tangible or intangible, and all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of, each of the foregoing, any and all Proceeds of any of the foregoing and all collateral security and guarantees given by any person insurance, indemnity, warranty or guaranty payable to such Grantor from time to time with respect to any of the foregoing. Notwithstanding anything herein to the contrary, to the extent and for so long as any asset is an Excluded Asset, the Security Interest granted under this Section shall not attach to, and Article 9 Collateral shall not include, such asset (it being understood that the Security Interest shall immediately attach to, and Article 9 Collateral shall immediately include, any such asset (or any portion thereof) upon such asset (or such portion thereof) ceasing to be an Excluded Asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent (and its designees) at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment to the Collateral Administrative Agent promptly upon written request. The Collateral Administrative Agent agrees, upon request by the Borrower (and at the Borrower’s expense, to promptly furnish copies each of such filings to the Borrower.
(dits designees) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Document Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "SECURITY INTEREST"), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”"ARTICLE 9 COLLATERAL"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAs-Extracted Collateral;
(iii) all Chattel Paper;
(iv) all Documentscash and Deposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all GoodsInstruments;
(viiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights;
(xiii) all Records and Commercial Tort Claims;
(xiv) all Securities Accounts;
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “"all assets” " of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) Closing Date. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any such Grantor, and naming any such Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Samples: Second Lien Guarantee and Collateral Agreement (Pacific Energy Resources LTD)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(iI) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiiII) all Chattel Paper;
(ivIII) all Cash and Deposit Accounts;
(IV) all Documents;
(vV) all Equipment;
(viVI) all General Intangibles, including all Intellectual Property;
(viiVII) all GoodsInstruments;
(viiiVIII) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xIX) all other Goods and Fixtures;
(X) all Investment Property;
(xiXI) all Intellectual PropertyLetter-of-Credit Rights;
(xiiXII) all Pledged CollateralCommercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(d);
(xiiiXIII) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixXIV) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that in no event shall the Security Interest attach to (A) any Excluded Assets and (B) the Excluded Equity Interests (it being understood that, to the extent the Security Interest shall not have attached to any such asset as a result of clauses (A) and (B) above, the term “Article 9 Collateral” shall not include any such asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, and the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto with respect to the Borrower.
(d) The Article 9 Collateral or any part thereof naming any Grantor as debtor or the Grantors as debtors and the Collateral Agent is further authorized as secured party, if filed prior to the date hereof. Other than with respect to the IP Security Agreements dated the date hereof, each Grantor shall timely file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of Patents, Trademarks or Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to shall promptly furnish copies provide evidence of such filings to the Borrower.
(e) Collateral Agent. No Grantor shall be required to complete any filings or other action with respect to the perfection of the Security Interests created hereby in any Intellectual Property subsisting in any jurisdiction outside of the United States. The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each including the Performance Guarantee, the Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such the Grantor or in which such the Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accountsthe Collections;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinCollection Accounts;
(iii) all Chattel Paperthe Lockboxes;
(iv) all Documentsthe Lockbox Accounts;
(v) all Equipmentthe Receivables;
(vi) all General Intangiblesthe Seller Related Security;
(vii) all Goodsthe SunGard Financing Related Security;
(viii) all Instruments, including all Pledged Securitiesthe SunGard Funding Related Security;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixx) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.;
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any The Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such the Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such the Grantor is an organization, the type of organization and any organizational identification number issued to such the Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each The Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any the Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment in cash or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including, without limitation, all Tangible Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinElectronic Chattel Paper);
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documentscomputer programs of such Pledgor and all intellectual property rights therein and all other proprietary information of such Pledgor, including but not limited to Domain Names and trade secret rights;
(v) all Intellectual Property;
(vi) all Documents;
(vii) all Equipment;
(viviii) all General Intangibles;
(viiix) all Goods;
(viiix) all Instruments, including all Pledged Securities;
(ixxi) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxii) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to Letter-of-Credit Rights (whether or not the Collateralrespective letter of credit is evidenced by a writing);
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsCommercial Tort Claims;
(xv1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time, and all Security Entitlements in respect thereof, (3) all Supporting Obligationscash held in any Securities Account or Deposit Account and (4) all other Money in the possession of the Collateral Agent;
(xvi) all cash and cash equivalentsCommodity Accounts;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoingforegoing clauses);
(xviii) all other personal property whatsoever books and Records pertaining to the Article 9 Collateral;
(xix) all Software and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of such Grantorany kind or nature, regardless of the medium of recording;
(xx) all After-Acquired Transportation Equipment; and
(xixxxi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in (a) any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings assets that are not pledged as security for Senior Lender Claims, (b) any property or assets owned by any Grantor will Foreign Subsidiaries, (c) any Equity Interests of a Foreign Subsidiary to the extent the pledge of any such Equity Interests would cause more than 65% of the outstanding voting Equity Interests of such Foreign Subsdiary to be pledged hereunder, (d) any Real Property held by the Pledgors as a lessee under a lease or any Real Property owned in fee that does not have an individual fair market value (as determined in good faith by QD LLC) of at least $1.0 million, (e) any Transportation Equipment (other than After-Acquired Transportation Equipment), (f) any assets to the extent that, and for so long as, taking a security interest in such assets would violate any applicable law or regulation or an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof and was not created or made binding on the assets in contemplation or in connection with the acquisition of such assets (except in the case of assets (A) owned on the date hereof or (B) acquired after the date hereof with Indebtedness of the type permitted pursuant to Section 4.03(b)(iv) of the Indenture that is secured by a Permitted Lien), (g) any equipment or other asset owned by any Pledgor that is subject to a purchase money lien or a Capitalized Lease Obligation, in each case, as permitted under the Indenture, if the contract or other agreement in which the Lien is granted (or the documentation providing for such Capitalized Lease Obligation) prohibits or requires the consent of any Person other than the Pledgors as a condition to the creation of any other security interest on such Equipment or asset and, in each case, the prohibition or requirement is permitted under the Indenture, (h) any Equity Interests acquired after the date hereof (other than Capital Stock in QD LLC, or in the case of any person which is a Restricted Subsidiary, Capital Stock in such person acquired after such person became a Restricted Subsidiary) in accordance with the Indenture if, and to the extent that, and for so long as (A) granting a security interest therein would violate applicable law or a contractual obligation binding on such Capital Stock and (B) with respect to contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Capital Stock in contemplation of or in connection with the acquisition of such Restricted Subsidiary, (i) any vehicle, (j) any property excluded from the definition of Pledged Collateral by virtue of the provisos to Section 3.01 hereof, (k) any Letter-of-Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (l) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute Collateral securing Note Obligations for a default under, or result in the benefit of Senior Secured Note Holders only abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulationprinciples of equity); provided that (x) requiring separate financial statements of such subsidiary to be filed with immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a security interest in, all such rights and interests without any further action on the part of such Pledgor or any Secured Party as if such provision had never been in effect and (y) the Collateral securing the Note Obligations right to receive payments of money or other consideration in favor respect of the Note Secured Parties (but only to the extent necessary to such license, contract or agreement shall not be subject to any such financial statement requirement). In such event, excluded from the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationssecurity interest created hereunder.
(cb) Each Grantor Pledgor hereby authorizes the Collateral Agent agrees at any time and from time to time to file (and irrevocably authorizes the Collateral Agent to file) at such Pledgor’s expense in any relevant jurisdiction any financing statements (including fixture filingsfilings and continuation statements when applicable) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written requesta file stamped copy of each such financing statement or other evidence of filing. The Collateral Agent agrees, upon request by shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing in connection with any Article 9 Collateral hereunder. Each Pledgor further agrees to file (and the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file (but shall not be obligated to file absent written direction of the Issuers) at such Pledgor’s expense with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, Notwithstanding anything to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.the
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all books and records pertaining to the Article 9 Collateral;
(xi) all Fixtures;
(xii) all Letter-of-Credit Rights, but only to the extent constituting a supporting obligation for other Article 9 Collateral as to which perfection of security interests in such Article 9 Collateral is accomplished by the filing of a UCC financing statement;
(xiii) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is Commercial Tort Claims listed on Schedule III and on any supplement thereto received by the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAdministrative Agent pursuant to Section 3.03(g); and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Assets and the term “Article 9 Collateral” shall not include any Excluded Assets.
(b) Subject to Section 3.01(e), each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all EquipmentGeneral Intangibles, including all Intellectual Property;
(vi) all General IntangiblesInstruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securitiesother Goods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(d);
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that in no event shall the Security Interest attach to (A) any lease, license, contract or agreement to which a Grantor is a party or any of its rights or interests thereunder if, to the extent and for so long as the grant of such security interest shall constitute or result in a breach of or a default under, or creates an enforceable right of termination in favor of any party (other than any Loan Party) to, such lease, license, contract or agreement (other than to the extent that any such term would be rendered ineffective, or is otherwise unenforceable, pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC or any other applicable Requirement of Law); provided that, to the extent severable, the Security Interest shall attach immediately to any portion of such lease, license, contract or agreement that does not result in any such breach, termination or default, including any Proceeds of such lease, license, contract or agreement; (B) any motor vehicle or other asset covered by a certificate of title or ownership, whether now owned or hereafter acquired, the perfection of which is excluded from the UCC in the relevant jurisdiction; (C) any asset owned by any Grantor that is subject to a Lien of the type permitted by Section 6.02(iv) of the Credit Agreement (whether or not incurred pursuant to such Section) or a Lien permitted by Section 6.02(xi) of the Credit Agreement, in each case if, to the extent and for so long as the grant of a Lien thereon hereunder to secure the Secured Obligations constitutes a breach of or a default under, or creates a right of termination in favor of any party (other than any Loan Party) to, any agreement pursuant to which such Lien has been created; provided that the Security Interest shall attach immediately to any such asset (x) at the time the provision of such agreement containing such restriction ceases to be in effect and (y) to the extent any such breach or default is not rendered ineffective by, or is otherwise unenforceable pursuant to the UCC or any other applicable Requirement of Law; (D) any asset owned by any Grantor with respect to which Borrower, with the written consent of the Administrative Agent (not to be unreasonably withheld or delayed), shall have provided to the Administrative Agent a certificate of a Financial Officer to the effect that, based on advice of outside counsel or tax advisors of national recognition, the creation of such security interest in such asset hereunder would result in adverse tax consequences to Holdings, any Intermediate Parent, the Borrower and its Restricted Subsidiaries (other than on account of any Taxes payable in connection with filings, recordings, registrations, stampings and any similar acts in connection with the creation or perfection of the Liens granted hereunder) that shall have been determined by Borrower to be material to Holdings, any Intermediate Parent, the Borrower and its Restricted Subsidiaries; (E) any asset owned by any Grantor if, to the extent and for so long as the grant of such security interest in such asset shall be prohibited by any applicable Requirements of Law (other than to the extent that any such prohibition would be rendered ineffective pursuant to the UCC or any other applicable Requirements of Law); provided that the Security Interest shall attach immediately to such asset at such time as such prohibition ceases to be in effect; (F) any asset owned by any Grantor that the Borrower and the Administrative Agent shall have agreed in writing to exclude from being Article 9 Collateral on account of the cost of creating a security interest in such asset hereunder (including any adverse tax consequences to Holdings, any Intermediate Parent, the Borrower and the Subsidiaries resulting therefrom) being excessive in view of the benefits to be obtained by the Secured Parties therefrom; (G) any intent-to-use trademark applications filed in the United States Patent and Trademark Office; and (H) the Excluded Equity Interests (it being understood that, to the extent the Security Interest shall not have attached to any such asset as a result of clauses (A) through (H) above, the term “Article 9 Collateral” shall not include any such asset); provided, however, that Article 9 Collateral shall include any Proceeds, substitutions or replacements of any of the foregoing (unless such Proceeds, substitutions or replacements would constitute property referred to in clauses (A) through (H)).
(b) Notwithstanding anything to Each Grantor hereby irrevocably authorizes the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Administrative Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto with respect to the Borrower.
(d) Article 9 Collateral or any part thereof naming any Grantor as debtor or the Grantors as debtors and the Administrative Agent as secured party, if filed prior to the date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of Patents, Trademarks or Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by by, or arising in favor of, such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest interest, regardless of where located (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents other Goods and other written materials related to the purchase or import of any InventoryFixtures;
(x) all Investment PropertyProperty and Pledged Collateral;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged Collateral;Money, cash and cash equivalents
(xiii) all Records and Commercial Tort Claims specifically described on Schedule IV hereto, as such schedule may be supplemented from time to time pursuant to Section 3.04(c);
(xiv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any Collateral; provided that in no event shall the Security Interest attach to any Excluded Assets (it being understood that, to the extent the Security Interest shall not have attached to any such asset as a result of it being an Excluded Asset, the foregoingterm “Article 9 Collateral” shall not include any such asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto including continuations that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor Grantor, if applicable, and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written the Collateral Agent’s reasonable request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto with respect to the Borrower.
(d) Collateral or any part thereof naming any Grantor as debtor or the Grantors as debtors and the Collateral Agent as secured party, if filed prior to the date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of registered or applied for United States Patents, Trademarks or Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, No Grantor shall be required to promptly furnish copies of such complete any filings or other action with respect to the Borrowerperfection of the Security Interests created hereby in any Intellectual Property subsisting or issued or registered by or filed in any jurisdiction outside of the United States.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Administrative Agent, its permitted successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) all Books and all cash, securities, Instruments and other property deposited or required to be deposited thereinRecords;
(iii) all Chattel Paper;
(iv) all DocumentsCommercial Tort Claims specified on Schedule IV;
(v) all EquipmentDeposit Accounts;
(vi) all General IntangiblesDocuments;
(vii) all GoodsEquipment;
(viii) all Instruments, including all Pledged SecuritiesFinancial Assets;
(ix) all Inventory or documents of titleGeneral Intangibles (including any contract rights, customs receipts, insurance certificates, shipping documents and other written materials related any agreements relating to the construction or purchase or import of any satellite, any agreement relating to the tracking, telemetry, control and monitoring of any satellite, all rights to the geostationary position of any satellite and any policy of insurance covering risk of loss or damage to any satellite));
(x) all Goods, including Fixtures;
(xi) all Instruments;
(xii) all Inventory;
(xxiii) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary Software and Letter of Credit Rightsall other Intellectual Property;
(xv) all Supporting Obligationsrights under or relating to any FCC licenses, subject to the exclusion in clause (C) of the proviso below;
(xvi) all cash and cash equivalentsLetter-of-Credit Rights;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoingMoney;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoingforegoing and all Supporting Obligations relating thereto; and
(xix) to the extent not otherwise included above, all other personal property of each Grantor of any kind or description; provided that the Article 9 Collateral shall not include, (A) any assets of any Excluded Entity, (B) the Excluded Equity Interests or (C) to the extent (but only to the extent) that at any time the Administrative Agent may not validly possess a security interest in any FCC license pursuant to the Communications Act of 1934, as amended, and the regulations promulgated thereunder, as in effect at such time, such FCC license, provided that the Article 9 Collateral does include, to the maximum extent permitted by law, all rights incident or appurtenant to such FCC license and the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such FCC licenses.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in the proper jurisdictions any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto and continuations thereof that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) statements as to whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any proper jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorLoan Party, without the signature of any GrantorLoan Party, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make Article 9 Collateral (other than the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto duties expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personcreated hereunder).
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Xm Investment LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranty, each Grantor hereby confirms the pledge mortgages and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Agent for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims described in Schedule II as supplemented from time to time;
(iv) all Documents;
(v) all EquipmentEquipment and Fixtures;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Intellectual Property;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetters of Credit and Letter-of-Credit Rights;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing foregoing, all supporting obligations and all offsprings, rents profits and products of any of the foregoing and all other collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; and provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Property; provided, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings however, that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such eventProperty” shall not include any Proceeds (including, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For for the avoidance of doubt, any Proceeds constituting cash), substitutions or replacements of any Excluded Property unless such Equity Interests shall remain Proceeds, substitutions or replacements would independently constitute Excluded Property.
(b) Each Grantor hereby irrevocably authorizes the Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments (including continuations) thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect or being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if applicable, any organizational identification number or incorporation number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further irrevocably authorized to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor officeoffice thereof) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing perfecting or protecting confirming the Security Interest granted by each Grantor, with notice to each, but without the signature of any Grantorany, Grantor (only if such signature cannot reasonably be obtained by the Collateral Agent and each Grantor hereby agrees to provide such signatures upon request of the Collateral Agent), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for In order to secure the payment or performanceSecured Obligations, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor Borrower hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, Parties holding such Secured Obligations a continuing security interest in all right, title or interest in or to any and all of the following assets and properties in each case property of the Borrower whether tangible or intangible, wherever located, and now owned or at any time existing or hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising and regardless of where located (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all AccountsPurchased Assets and Related Recourse Rights and all of the Borrower’s rights under the Transaction Documents;
(ii) all right, title and interest of the Cash Borrower in all Securities Accounts including, without limitation, the Collateral Account Account, and for each such Securities Account, all Financial Assets held therein or credited thereto (as defined in the Revolving Credit Agreementincluding all cash, Instruments and Investment Property) and all cashSecurity Entitlements in respect thereof, securities, Instruments and other property deposited or required to be deposited thereinall rights of the Borrower in respect of the foregoing;
(iii) all Accounts;
(iv) all Chattel Paper;
(ivv) all cash and Deposit Accounts;
(vi) all Documents;
(v) all Equipment;
(vivii) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual Property;books and records of the Borrower pertaining to any of its Collateral; and
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any Proceeds of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of Collateral described in the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoingclauses (ii) through (xi).
(b) Notwithstanding anything With respect to the contrary each right to payment or performance included in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only from time to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such eventtime, the Security Documents may be amended Interest granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or modified, without the consent of the Note Trustee, the Collateral Agent, performance and (ii) any Senior Secured Note Holder Lien that (x) secures such right to payment or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, performance or (y) secures any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsSupporting Obligation.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or transfer or in any way alter affect or modify, any obligation or liability of any Grantor the Borrower with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations Collateral or liabilities of a member of any limited liability company or as a partner transaction in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personconnection therewith.
Appears in 1 contract
Samples: Security and Intercreditor Agreement
