The Security Interests. (A) In order (i) to secure the due and punctual payment of the Note, (ii) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing hereinafter called the "Obligations"), the Debtor hereby grants to the Secured Party a continuing security interest in the following described fixtures and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including without limitation: (a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral"); (b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits); (c) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; (d) All accessions, additions or improvements to, and all proceeds and products of, all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and (e) All books, records, documents, computer tapes and discs relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest. (B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables". (C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description. (D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto. (E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 2 contracts
Samples: Security Agreement (International Dispensing Corp), Security Agreement (International Dispensing Corp)
The Security Interests. (Aa) In order (i) to secure the due and punctual payment and performance of (i) that certain Guaranty Agreement of the NoteDebtors in favor of the Secured Party dated as of the date hereof, as amended from time to time (as amended from time to time, the “Guaranty Agreement”) pursuant to which the Debtors have guaranteed the payment and performance of all obligations, liabilities and indebtedness of QUALITY GOLD, INC., an Ohio corporation (“Quality Gold”) and MTM, INC., a Delaware corporation (“MTM”) (Quality Gold and MTM are hereinafter sometimes collectively referred to herein as the “Borrowers”) to the Secured Party, including without limitation, all obligations, liabilities and indebtedness of the Borrowers to Secured Party pursuant to that certain Consignment Agreement between the Borrowers and the Secured Party dated as of the date hereof, as amended from time to time (as amended, the “Consignment Agreement”), and (ii) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor Debtors or the Borrowers by the Secured Party and the due and punctual payment and performance of all other indebtedness, liabilities and obligations of the Debtor Debtors and the Borrowers to the Secured Party Party, of every kind and description, whether direct, indirect or contingent, now or hereafter existing, due or to become due due, and howsoever arising, incurred or evidenced (all of the foregoing are hereinafter called the "“Secured Obligations"”), the Debtor Debtors hereby grants grant to the Secured Party a continuing security interest in the following described fixtures and personal property (hereinafter collectively called the "“Collateral"”): All fixtures and all tangible and intangible personal property of the DebtorDebtors, whether now owned or hereafter acquired by the DebtorDebtors, or in which the Debtor Debtors may now have or hereafter acquire an interest, including including, without limitation:
, (a) all equipment Equipment (including all machinery, tools and furniture), all inventory Inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goodsGoods, whether now owned or hereafter acquired by the DebtorDebtors or acquired on consignment, or in which the Debtor Debtors may now have or hereafter acquire an interest (the "“Tangible Collateral"”);
; (b) All accountsall Accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceedsChattel Paper, and general intangibles General Intangibles of the Debtor Debtors (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applicationstrademarks, tradenames, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the DebtorDebtors, or in which the Debtor Debtors may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
; (c) All instrumentsall Instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accountsDeposit Accounts, checking accounts, certificates of deposit accounts and cash, whether cash now owned or hereafter acquired owned by the DebtorDebtors, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or improvements to, and all proceeds and products of, all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor Debtors may now have or hereafter acquire an interest; and
(d) all the Debtors' rights under consignment agreements with vendors of the Debtors' memo programs and all security therefor; (e) All Commercial Tort Claims, Documents, Fixtures, Investment Property and Letter-of-Credit Rights presently owned or hereinafter acquired by the Debtors, including, without limitation, books and records, supporting obligations, contract rights or rights to the payment of money, trademarks, service marks, tradenames, copyrights and trade secrets, policies and certificates of insurance and all amounts payable to the Debtors or rights of the Debtors under or with respect to any such insurance, including, without limitation, all proceeds, refunds and premium rebates, whether any such proceeds, refunds and premium rebates, arise out of any of the foregoing, or otherwise, money, cash or other property, federal, state and local tax refunds and/or abatements to which the Debtors is, or shall become, entitled, no matter how or when arising, including, but not limited to, any carryback tax refunds, all liens, guarantees, rights, remedies and privileges pertaining to any of the foregoing, including the right of stoppage in transit; (f) all accessions, additions or improvements, to all replacements, substitutions and parts for, and all proceeds and products to all of the foregoing; and (g) all books, records, documents, computer tapes records and discs documents relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(Bb) All Collateral consisting of accountsAccounts, contract rights, chattel paperChattel Paper and General Intangibles of the Debtors, general intangibles whether now existing or hereafter existing, and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter hereafter collectively called the "“Customer Receivables"”.
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(Dc) The security interests granted pursuant to this Section 1 (the "“Security Interests"”) are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor Debtors under any of the Collateral or any transaction which gave rise thereto.
(Ed) Unless otherwise defined In the event that any of the contract rights would be or become voidable or would be violated on account of the security interest contemplated herein, or unless the context otherwise requires, all terms used herein which are defined security interest in the New York Uniform Commercial Code have specific contract right which requires such consent shall be void ab initio and in such event the meanings therein statedDebtors covenant and agree to exercise all of their rights and remedies under such contract at the direction of and for the benefit of the Secured Party.
Appears in 1 contract
The Security Interests. (A) In order (i) to secure the due full and punctual payment of the Note, (ii) to secure the and performance of all the obligations of the Debtor contained herein present and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing hereinafter called the "Obligations")Indebtedness, the Debtor Mortgagor hereby grants to the Secured Party Mortgagee, for the benefit of the Credit Parties, a continuing security interest in and to all right, title, and interest of the Mortgagor in, to, or under the following described fixtures and personal property property, whether now owned or existing or hereafter acquired or arising:
(hereinafter collectively called the "Collateral"): All fixtures and a) all tangible and intangible personal property of the Debtormovable property now or hereafter used in or found on or about the Premises, whether now owned or hereafter acquired by Mortgagor, including, but not limited to, all goods that become fixtures, all heating, lighting, refrigeration, plumbing, ventilating, laundry, incinerating, water-heating, cooking, dishwashing, electrical and air conditioning equipment, fixtures and appurtenances, together with all disposals, dishwashers, machinery, elevators, pumps, generators, sprinklers, wiring, pipe, doors, motors, compressors, boilers, condensing units, range hoods, windows, window screens, window shades, venetian blinds, awnings, drapes, shelving, mantels, cabinets, paneling, rugs and other floor coverings, and shrubbery, all building materials, inventory, furniture, appliances, goods, equipment and machinery and all renewals, replacements and substitutions thereof and additions thereto and Mortgagor's current and future rights as lessee under leases of any of the Debtorforegoing; all rights, titles and interests of Mortgagor in and to all timber to be cut from the Premises covered hereby and all minerals in, under and upon, produced or to be produced from the Premises, and without limitation of the foregoing, any and all permits, licenses, approvals, rights, rents, revenues, benefits, leases, concessions, licenses, tenements, hereditaments and appurtenances now or hereafter owned by Mortgagor and appertaining to, generated from, arising out of or belonging to the above described properties or any part thereof. Some of the said items are to become 'fixtures' on the Premises;
(b) All judgments, awards of damages, insurance proceeds and settlements hereafter made resulting from condemnation proceedings or the taking of all or any part of the Premises under the power of eminent domain, or for any damage (whether caused by a taking, a casualty or otherwise) to the Premises or any part thereof, or to any rights appurtenant thereto, including, but not limited to, any award for change of grade of streets. The Mortgagee is hereby authorized, but shall not be required, on behalf and in the name of Mortgagor to execute and deliver valid acquittances for, and to appeal from, any such judgments or awards. Subject to the terms and conditions of the Credit Agreement, the Mortgagee may apply all such sums or any part thereof so received as a payment on the Indebtedness;
(c) all bonuses, rents, royalties and other accounts resulting from the sale of severed minerals or the like (including oil and gas) accrued or to accrue under all oil, gas or mineral leases affecting the Premises, now existing or which may hereafter come into existence. Mortgagor directs payment of the Debtor may same to the Mortgagee, for the benefit of the Credit Parties, at the option of the Mortgagee and upon written demand of the Mortgagee therefor, to be applied to the Indebtedness until paid, whether due or not, after any Event of Default;
(d) all books and records (including, without limitation, accounting records, customer lists, credit files, computer programs and data, tapes, disks, punch cards, data processing software, transaction files, master files, printouts and other computer materials and records) of the Mortgagor relating to the Premises; and
(e) all Proceeds and products of all or any of the Collateral described in clauses (a) through (d) hereof and, to the extent not otherwise included, all payments under any insurance, indemnity, warranty or guaranty of or for the foregoing Collateral. The term 'Collateral' means each and all of the items and property described in clauses (a)-(e) above, together with the Mortgaged Property, the Leases, the Rentals and the property described in the balance of this Section 2.3 below. Without limitation of the foregoing, the 'Collateral' shall also include all right, title, and interest now have owned or hereafter acquire an interest, including without limitationacquired by Mortgagor in and to the following described property and all replacements or substitutions therefor and all products and proceeds thereof:
(a) all equipment contracts, now or hereafter entered into by and between the Mortgagor and any contractor or supplier as well as all right, title, and interest of Mortgagor under any subcontracts, providing for the construction (including all machineryoriginal, tools and furniture)restorative, all inventory (including all merchandise, raw or otherwise) of any improvements to or on any of the Premises or the furnishing of any materials, work in processsupplies, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtorequipment, or labor in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral");connection with any such construction
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present plans, specifications, and further authorizationsdrawings (including but not limited to plot plans, permitsfoundations plans, licenses floor plans, elevations, framing plans, cross-sections of walls, mechanical plans, electrical plans and franchises architectural and engineering plans, and architectural and engineering studies and analyses) heretofore or hereafter granted to the Debtor for the operation prepared by any architect or engineer, in respect of any of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits)Premises;
(c) All instrumentsall agreements now or hereafter entered into with any party in respect to architectural, documents engineering, management, or consulting services rendered or to be rendered in respect of titleplanning, letters of creditdesign, rights to proceeds of letters of creditinspection, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all or supervision of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to construction or management of any successor business entities, and of the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interestPremises;
(d) All accessions, additions any commitment issued by any lender or improvements to, and all proceeds and products of, all investor other than the Mortgagee to finance or invest in any of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interestPremises; and
(e) All books, records, documents, computer tapes any completion or performance bond or labor and discs material payment bond and any other bond relating to all the Premises or to any contract providing for construction of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended improvements to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and descriptionPremises.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
The Security Interests. Each Grantor hereby collaterally assigns (Aexcept with respect to intent-to-use trademark applications, if any) In order (i) and pledges to secure Agent, its successors and assigns, for the due and punctual payment ratable benefit of the NoteSecured Parties, (ii) and hereby grants to secure Agent, its successors and assigns, for the performance of all the obligations ratable benefit of the Debtor contained herein and in the Note and the AssignmentSecured Parties, and (iii) to secure as security for the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations or performance in full of the Debtor Obligations of such Grantor, a security interest (the “Security Interest”) in all right, title and interest of such Grantor in, to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (under any and all of the foregoing hereinafter called the "Obligations"), the Debtor hereby grants to the Secured Party a continuing security interest in the following described fixtures assets and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether properties now owned or at any time hereafter acquired by the Debtor, such Grantor and wherever located or in which such Grantor now has or at any time in the Debtor future may now have acquire any right, title or hereafter acquire an interestinterest (collectively, including without limitation:the “Collateral”):
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral")Accounts;
(b) All accountsall Chattel Paper, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits)Electronic Chattel Paper;
(c) All instrumentsall Commercial Tort Claims of such Grantor, documents including those described in Schedule 1 hereto in respect of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interestGrantor;
(d) All accessionsall Deposit Accounts and Securities Accounts, additions including all cash, marketable securities, Security Entitlements, Financial Assets and other funds held in or improvements toon deposit in any of the foregoing;
(e) all Documents;
(f) all General Intangibles, including Intellectual Property;
(g) all Goods, including Inventory, Equipment, and Fixtures, but excluding Motor Vehicles;
(h) all Instruments, including all Pledged Securities;
(i) all Investment Property;
(j) all Pledged Collateral;
(k) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(l) all Supporting Obligations;
(m) all cash and cash equivalents or monies, whether or not in the possession or under the control of Agent, a Secured Party, or a bailee or Affiliate of Agent or a Secured Party, including any Cash Collateral;
(n) all other personal property whatsoever of such Grantor;
(o) all books and records (including customer lists, files, correspondence, tapes, computer programs, print-outs and computer records) pertaining to the Collateral;
(p) all Proceeds (cash and non-cash), all accessions to and substitutions for, and all proceeds replacements and products ofof the foregoing and all offsprings, rent 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, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
(eq) All booksall other assets, recordsproperties and rights of every kind and description and interests therein, documentsincluding all moneys, computer tapes securities and discs relating other property, now or hereafter held or received by, or in transit to, any Grantor, Agent or any other Secured Party, whether for safekeeping, pledge, custody, transmission, collection or otherwise; provided, however, that notwithstanding anything to all the contrary in clauses (a) through (q) above:
(i) any General Intangible, License, Chattel Paper or Instrument which by its terms prohibits the creation of a security interest therein (whether by assignment or otherwise) shall be excluded from the Lien of the foregoingSecurity Interest granted under this Section 3.01, whether now and shall not be included in the Collateral of such Grantor, except to the extent that (but subject to the limitations of) Sections 9-406(d), 9-407(a) or 9-408 of the UCC are effective to render any such prohibition ineffective; provided, however, that if any General Intangible, License, Chattel Paper, Instrument or Account included in the Collateral contains any term restricting or requiring the consent of any Person (other than a Grantor) obligated thereon to any exercise of remedies hereunder in respect of the Security Interest therein granted under this Section 3.01, then the enforcement of such Security Interest under this Agreement shall be subject to obtaining consent thereto (but such provision shall not limit the creation, attachment or perfection of the Security Interest hereunder);
(ii) any permit, lease, license (including any License) or franchise shall be excluded from the Lien of the Security Interest granted under this Section 3.01, and shall not be included in the Collateral, only to the extent any Law applicable thereto is effective to prohibit the creation of a Security Interest therein;
(iii) any Equipment (including any Software incorporated herein) owned by any Grantor on the date hereof or hereafter acquired by that is subject to a Lien securing a purchase money obligation or Capital Lease permitted to be incurred pursuant to the Debtor, or in which provisions of the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising Loan Agreement shall be excluded from the sale, delivery or provision Lien of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in Security Interest granted under this Security Agreement coversSection 3.01, and is intended to cover, all assets of shall not be included in the Debtor. For avoidance of doubt, it is expressly understood and agreed thatCollateral, to the extent that the Uniform Commercial Code contract or other agreement in which such Lien is granted ("UCC"or the documentation providing for such purchase money obligation or Capital Lease) is revised subsequent to validly prohibits the date hereof such that the definition creation of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in other Lien on such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.Collateral;
Appears in 1 contract
Samples: Pledge and Security Agreement (NewLake Capital Partners, Inc.)
The Security Interests. (A) In order order: (i) to secure the due and punctual payment of the principal and interest on that certain Convertible Promissory Note of Debtor of even date herewith issued to Secured Party in the original principal amount of Three Hundred Thousand Dollars ($300,000) (the "Note"), and (ii) to secure the due and punctual payment and performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party Party, of every kind and description, whether direct, indirect or contingent, now existing or hereafter existingacquired or arising, secured or unsecured, primary or secondary, due or to become due due, arising under the Note or this Agreement and any future amendments thereto (all of the foregoing are hereinafter called the "Obligations"), the Debtor hereby grants to the Secured Party a continuing security interest in the following described fixtures and personal property whether now owned or hereafter acquired or arising and wherever located (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether now owned or hereafter acquired owned by the Debtor, Debtor or in which the Debtor may now have or hereafter acquire an interest, including without limitation:
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral");
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire acquires an interest, including, without limitation, all of the Debtor's rights under all present and further authorizationsmachinery, permitsequipment, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateralmotor vehicles, to the maximum extent permitted by lawfurniture, all rights incident to appurtenant to such licenses and permitsfurnishings, includingoffice supplies, without limitationcomputer software, the right to receive all proceeds derived from or in connection with the salegeneral intangibles, assignment or transfer of such licenses and permits);
(c) All contract rights, patents, trademarks, copyrights, trade names, instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit accounts and cash, whether and all additions and accessions thereto and all replacements and substitutions therefor and parts therefor now owned or hereafter acquired by the Debtor, Debtor or in which the Debtor may now have or hereafter acquire holds or hereafter acquires an interest;
(d) All accessions, additions or improvements to, and ; all proceeds and products of, of all of the foregoing, including proceeds of insurance whether wherever situated. All inventory now owned or hereafter acquired by the Debtor, Debtor or in which the Debtor may now have or hereafter acquire acquires an interest, including all merchandise, returned and repossessed goods, raw materials, goods in process, finished goods and proceeds therefor (hereinafter called the "Inventory"), and all accounts of Debtor, including all accounts receivable, notes, drafts, acceptances, chattel paper and other forms of obligations and receivables now owned or hereafter arising from Inventory sold or otherwise disposed of by Debtor; and
(e) All books, records, documents, computer tapes and discs relating to all proceeds and products of all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, paper and general intangibles of Debtor, whether now existing or hereafter arising, and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto. Debtor does not assign any contract rights hereby which, pursuant to such contract rights, Debtor is prohibited from assigning to Secured Party.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
Samples: Security Agreement (Paperclip Imaging Software Inc/De)
The Security Interests. (A) In order (i) to secure the due and punctual payment of the Note, (ii) to secure the and performance of all the obligations of the Debtor contained herein and Obligations (as defined in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing hereinafter called the "Obligations"Consignment Agreement), the Debtor hereby grants to Secured Party, for the Secured Party ratable benefit of the Banks, a continuing security interest in the following described fixtures and personal property whether now owned or hereafter acquired or arising and wherever located (hereinafter collectively called the "Collateral"): All fixtures gold bullion, gold granule and other gold or precious metals in whatever form including all tangible substitutions, replacements and intangible personal property of the Debtorproducts in which any such gold or other precious metals are incorporated or into which such gold or other precious metals are processed or converted, whether now owned or hereafter acquired by the Debtor, Debtor or in which the Debtor may now have or hereafter acquire acquires an interest, and all additions and accessions thereto and all replacements and substitutions therefor and all proceeds and products of all of the foregoing, wherever situated. All inventory now owned or hereafter acquired by Debtor or in which Debtor now or hereafter acquires an interest, including without limitation:
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, returned and repossessed goods, raw materials, work goods in process, finished goods and suppliesproceeds therefor (hereinafter called the "Inventory"), motor vehicles and goods, whether now owned or hereafter acquired by the all accounts of Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral");
(b) All accounts, including all accounts receivable, rights to the payment of moneynotes, payment intangiblesdrafts, other receivables, contract rights, contracts, leasesacceptances, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims paper and other insurance claims forms of obligations and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether receivables now owned or hereafter acquired arising from Inventory sold or otherwise disposed of by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
(c) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or improvements to, and all proceeds and products of, all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
thereof (e) All books, records, documents, computer tapes and discs relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor). For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
The Security Interests. (Aa) In order (i) to secure the due and punctual payment and performance of (i) that certain Consignment Agreement between the Debtors and the Secured Party dated as of the Notedate hereof, as amended from time to time (as amended, the “Consignment Agreement”), and (ii) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor Debtors by the Secured Party and the due and punctual payment and performance of all other indebtedness, liabilities and obligations of the Debtor Debtors to the Secured Party Party, of every kind and description, whether direct, indirect or contingent, now or hereafter existing, due or to become due due, and howsoever arising, incurred or evidenced, including all products and services provided to the Debtors by the Secured Party including cash management, foreign exchange and other treasury products and services (all of the foregoing are hereinafter called the "“Secured Obligations"”), the Debtor Debtors hereby grants grant to the Secured Party a continuing security interest in the following described fixtures and personal property (hereinafter collectively called the "“Collateral"”): All fixtures and all tangible and intangible personal property of the DebtorDebtors, whether now owned or hereafter acquired by the DebtorDebtors, or in which the Debtor Debtors may now have or hereafter acquire an interest, including including, without limitation:
, (a) all equipment Equipment (including all machinery, tools and furniture), all inventory Inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goodsGoods, whether now owned or hereafter acquired by the DebtorDebtors or acquired on consignment, or in which the Debtor Debtors may now have or hereafter acquire an interest (the "“Tangible Collateral"”);
; (b) All accountsall Accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceedsChattel Paper, and general intangibles General Intangibles of the Debtor Debtors (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applicationstrademarks, tradenames, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the DebtorDebtors, or in which the Debtor Debtors may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
; (c) All instrumentsall Instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accountsDeposit Accounts, checking accounts, certificates of deposit accounts and cash, whether cash now owned or hereafter acquired owned by the DebtorDebtors, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or improvements to, and all proceeds and products of, all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor Debtors may now have or hereafter acquire an interest; and
(d) all the Debtors’ rights under consignment agreements with vendors of the Debtors’ memo programs and all security therefor; (e) All Commercial Tort Claims, Documents, Fixtures, Investment Property and Letter-of-Credit Rights presently owned or hereinafter acquired by the Debtors, including, without limitation, books and records, supporting obligations, contract rights or rights to the payment of money, trademarks, service marks, tradenames, copyrights and trade secrets, policies and certificates of insurance and all amounts payable to the Debtors or rights of the Debtors under or with respect to any such insurance, including, without limitation, all proceeds, refunds and premium rebates, whether any such proceeds, refunds and premium rebates, arise out of any of the foregoing, or otherwise, money, cash or other property, federal, state and local tax refunds and/or abatements to which the Debtors is, or shall become, entitled, no matter how or when arising, including, but not limited to, any carryback tax refunds, all liens, guarantees, rights, remedies and privileges pertaining to any of the foregoing, including the right of stoppage in transit; (f) all accessions, additions or improvements, to all replacements, substitutions and parts for, and all proceeds and products to all of the foregoing; and (g) all books, records, documents, computer tapes records and discs documents relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(Bb) All Collateral consisting of accountsAccounts, contract rights, chattel paperChattel Paper and General Intangibles of the Debtors, general intangibles whether now existing or hereafter existing, and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter hereafter collectively called the "“Customer Receivables"”.
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(Dc) The security interests granted pursuant to this Section 1 (the "“Security Interests"”) are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor Debtors under any of the Collateral or any transaction which gave rise thereto.
(Ed) Unless otherwise defined In the event that any of the contract rights would be or become voidable or would be violated on account of the security interest contemplated herein, or unless the context otherwise requires, all terms used herein which are defined security interest in the New York Uniform Commercial Code have specific contract right which requires such consent shall be void ab initio and in such event the meanings therein statedDebtors covenant and agree to exercise all of their rights and remedies under such contract at the direction of and for the benefit of the Secured Party.
Appears in 1 contract
The Security Interests. (A) In order (i) to secure the due and punctual payment of that certain Settlement Agreement dated October 29, 2001 between Debtor, as debtor, and Force, as creditor (the Note"Force Settlement Agreement"), (ii) to secure the due and punctual payment of that certain Settlement Agreement dated November 7, 2001 between Debtor, as debtor, and Sanmina, as creditor (the "Sanmina Settlement Agreement"), (iii) to secure the due and punctual payment of that certain Settlement Agreement dated November 14, 2001 between Debtor, as debtor, and Brooktrout, as creditor (the "Brooktrout Settlement Agreement" and together with the Force Settlement Agreement and the Sanmina Settlement Agreement, the "Settlement Agreements"), and (iv) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing are hereinafter called the "Obligations"), which Obligations shall not exceed in the aggregate the sum of $4,500,000, Debtor hereby grants to the Secured Party a continuing security interest in and to all fixtures and tangible personal property of the Debtor, of every kind and nature, whether now owned or hereafter acquired or arising and wherever located and all proceeds and products thereof, including but not limited to the following described fixtures and personal property (hereinafter collectively called the "Collateral"): All fixtures ):
(a) all machinery, equipment, fixtures, tools, furniture and all tangible and intangible personal property of the Debtor, other goods whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including without limitation:and all replacements, substitutions and all parts thereof;
(ab) all equipment (inventory, including all machinery, tools and furniture), all inventory (including but not limited to all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, supplies whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral");
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of and including any goods that are returned to the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
(c) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or and improvements to, and all proceeds and products of, all of the foregoing, including proceeds of insurance policies or any indemnity, warranty or guaranty payable by reason of loss or damage to or otherwise with respect to any of the foregoing Collateral, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
(ed) All all books, records, documents, computer tapes and discs relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer to Secured Party, or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein. For avoidance of doubt it is expressly understood and agreed that the Collateral does not include, inter alia, patents, applications for patents, trademarks, trade names, service marks, registrations of trademarks and service marks, copyrights, blueprints, designs, engineering drawings and contracts, proprietary information, product lines, research and development, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein statedany other form of intellectual property.
Appears in 1 contract
The Security Interests. Each Grantor hereby collaterally assigns (Aexcept with respect to intent-to-use trademark applications, if any) In order (i) and pledges to secure the due Administrative Agent, its successors and punctual payment assigns, for the ratable benefit of the Note, (ii) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the AssignmentSecured Parties, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing hereinafter called the "Obligations"), the Debtor hereby grants to the Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Party Parties, as security for the payment or performance in full of the Obligations of such Grantor, a continuing security interest (the “Security Interest”) in all right, title and interest of such Grantor in, to and under any and all of the following described fixtures assets and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether properties now owned or at any time hereafter acquired by the Debtor, such Grantor or in which such Grantor now has or at any time in the Debtor future may now have acquire any right, title or hereafter acquire an interestinterest (collectively, including without limitation:the “Collateral”):
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral")Accounts;
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits)Chattel Paper;
(c) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind all cash and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interestDeposit Accounts;
(d) All accessionsall Documents;
(e) all Equipment, additions including all Fixtures, but excluding Motor Vehicles;
(f) all General Intangibles (other than Intellectual Property);
(g) all Instruments;
(h) all Inventory;
(i) all Investment Property;
(j) all Pledged Collateral;
(k) all Supporting Obligations;
(l) all Commercial Tort Claims of such Grantor described in Schedule 2 hereto in respect of such Grantor (as such schedule may be supplemented from time to time pursuant to any Security Agreement Supplement or improvements otherwise);
(m) all other Goods;
(n) all books and records pertaining to the Collateral;
(o) all other assets, properties and rights of every kind and description and interests therein, including all moneys, securities and other property, now or hereafter held or received by, or in transit to, any Grantor, the Administrative Agent or any other Secured Party, whether for safekeeping, pledge, custody, transmission, collection or otherwise; and
(p) all Proceeds of any and all proceeds and products of, all of the foregoing; provided, however, that notwithstanding anything to the contrary in clauses (a) through (p) above:
(i) any General Intangible, Chattel Paper, Instrument or Account which by its terms prohibits the creation of a security interest therein (whether by assignment or otherwise) shall be excluded from the Lien of the Security Interest granted under this Section 3.01, and shall not be included in the Collateral of such Grantor, except to the extent that Sections 9-406(d), 9-407(a) or 9-408(a) of the UCC are effective to render any such prohibition ineffective; provided, however, that if any General Intangible, Chattel Paper, Instrument or Account included in the Collateral contains any term restricting or requiring the consent of any Person (other than a Grantor) obligated thereon to any exercise of remedies hereunder in respect of the Security Interest therein granted under this Section 3.01, then the enforcement of such Security Interest under this Agreement shall be subject to Section 6.01(c) (but such provision shall not limit the creation, attachment or perfection of the Security Interest hereunder);
(ii) any permit, lease, license (including proceeds any License) or franchise shall be excluded from the Lien of insurance whether now the Security Interest granted under this Section 3.01, and shall not be included in the Collateral, to the extent any Law applicable thereto is effective to prohibit the creation of a Security Interest therein;
(iii) any Equipment (including any Software incorporated herein) owned by any Grantor on the date hereof or hereafter acquired by that is subject to a Lien securing a purchase money obligation or Capitalized Lease permitted to be incurred pursuant to the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
(e) All books, records, documents, computer tapes and discs relating to all provisions of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising Credit Agreement shall be excluded from the sale, delivery or provision Lien of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in Security Interest granted under this Security Agreement coversSection 3.01, and is intended to cover, all assets of shall not be included in the Debtor. For avoidance of doubt, it is expressly understood and agreed thatCollateral, to the extent that the Uniform Commercial Code contract or other agreement in which such Lien is granted ("UCC"or the documentation providing for such purchase money obligation or Capitalized Lease) is revised subsequent validly prohibits the creation of any other Lien on such Collateral;
(iv) any Copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any Patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, Trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of any Grantor connected with and symbolized by such Trademarks, any trade secret rights, including any rights to the date hereof such that the definition unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damage by way of any past, present and future infringement of any of the foregoing terms included set forth in this clause (iv) shall be excluded from the description Lien of Collateral is changed, the parties agree that any property which is included in such changed definitions which would Security Interest granted under this Section 3.01 and shall not otherwise be included in the foregoing grant on Collateral, except that the Collateral shall include the proceeds of all the Intellectual Property that are Accounts of any Grantor, or General Intangibles consisting of rights to payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and General Intangibles of such Grantor that are proceeds of the Intellectual Property, then the Collateral shall automatically, and effective as of the date hereof be hereof, include the Intellectual Property to the extent necessary to permit perfection of the Administrative Agent’s security interest in such Accounts and General Intangibles of such Grantor that are proceeds of the Intellectual Property; and
(v) the Collateral shall not include more than 65% of the aggregate issued and outstanding voting equity interests of any Foreign Subsidiary or any assets of any Foreign Subsidiary. With respect to property described in clauses (i) through (iii) above to the extent not included in such grant immediately upon the effective date Collateral of such revisionGrantor (the “Excluded Property”), it being such property shall constitute Excluded Property only to the intention extent and for so long as the creation of a Lien on such property in favor of the parties hereto that Administrative Agent is, and remains, validly prohibited, and upon termination of such prohibition (however occurring), such property shall cease to constitute Excluded Property. The Grantors may be required from time to time at the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures request of the Debtor of every kind Administrative Agent to give written notice to the Administrative Agent identifying in reasonable detail the Excluded Property (and descriptionstating in such notice that such property constitutes Excluded Property) and to provide the Administrative Agent with such other information regarding the Excluded Property as the Administrative Agent may reasonable request.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
The Security Interests. (A) In order (i) to secure the due and punctual payment of the Note, (ii) to secure the and performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor Loan Obligations owing to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or from time to become due (all of the foregoing hereinafter called the "Obligations")time, the Debtor hereby grants to the Secured Party a continuing lien and security interest in in, and hereby assigns to the Secured Party as collateral security, the following described fixtures property and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property interests of the Debtor, whether now owned or hereafter acquired by or existing, and wherever located (collectively, the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including without limitation:"Collateral"):
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral")Accounts;
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, all present and future contract rights, contractsgeneral intangibles (including, leasesbut not limited to, tax and duty refunds, registered and unregistered patents, trademarks (excluding trademarks listed on Schedule 3(l) of the Note, which trademarks, with the exception of "Cutlery World," are not currently being used by Debtor), service marks, copyrights, trade names, applications for the foregoing, trade secrets, goodwill, processes, drawings, blueprints, customer lists, licenses, whether as licensor or licensee (to the extent that the granting of the Secured Party's lien and security interest therein will not cause a termination of such licenses or result in the loss of the benefits of such licenses to the Debtor), chooses in action and other claims and existing and future leasehold interests in equipment, real estate and fixtures, those intangibles set forth in SCHEDULE 1 annexed hereto, and the right to xxx for infringement and/or unauthorized use of any intangibles), chattel paper, electronic chattel paperdocuments, commercial tort claimsinstruments, insurance refund claims letters of credit, bankers' acceptances and guaranties;
(c) all present and future monies, securities, credit balances, deposits, deposit accounts and other insurance claims and proceeds, and general intangibles property of the Debtor (now or hereafter held or received by or in transit to the Secured Party or its affiliates or at any other depository or other institution from or for the account of the Secured Party, whether for safekeeping, pledge, custody, transmission, collection or otherwise, and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of Accounts and other Collateral, including, without limitation, all tax refund claims(i) rights and remedies under or relating to guaranties, goodwillcontracts of suretyship, going concern valueletters of credit and credit and other insurance related to the Collateral, patents(ii) rights of stoppage in transit, patent applicationsreplevin, blueprintsrepossession, designsreclamation and other rights and remedies of an unpaid vendor, computer programslienor or secured party, software(iii) goods described in invoices, service marksdocuments, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned contracts or hereafter acquired by the Debtorinstruments with respect to, or otherwise representing or evidencing, Accounts or other Collateral, including, without limitation, returned, repossessed and reclaimed goods, and (iv) deposits by and property of account debtors or other persons securing the obligations of account debtors;
(d) all Inventory;
(e) all Equipment;
(f) all interests of every kind and description held or possessed by Debtor in which the Debtor may now have any real property or hereafter acquire an interestimprovements to real property, including, without limitation, all fee ownership and/or leasehold interests (to the extent not prohibited by or requiring consent under Debtor's leases) in real property or improvements thereto;
(g) all Records; and
(f) all products and proceeds of the Debtor's rights under all present and further authorizationsforegoing, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permitsin any form, including, without limitation, the right to receive all insurance proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
(c) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or improvements to, and all proceeds and products of, claims against third parties for loss or damage to or destruction of any or all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
(e) All books, records, documents, computer tapes and discs relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
The Security Interests. (A) In order (i) to secure the due and punctual payment of the Note, (ii) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing hereinafter called the "Obligations"), the Debtor Each Grantor hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Party Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, as security for the payment and performance in full of the each of the Secured Obligations, a continuing security interest (the “Security Interest”) in all right, title and interest of such Grantor in, to and under any and all of the following described fixtures assets and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether properties now owned or at any time hereafter acquired by the Debtor, such Grantor and wherever located or in which such Grantor now has or at any time in the Debtor future may now have acquire any right, title or hereafter acquire an interestinterest (collectively, including without limitation:the “Collateral”):
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral")Accounts;
(b) All accountsall Chattel Paper, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits)Electronic Chattel Paper;
(c) All instrumentsall Deposit Accounts and Securities Accounts, documents of titleincluding all cash, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, marketable securities, securities entitlementsSecurity Entitlements, investment property, partnership interests, membership interests Financial Assets and other funds held in limited liability companies (including, without limitation, all or on deposit in any of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interestforegoing;
(d) All accessionsall Documents;
(e) all Equipment, additions including all Fixtures, but excluding Motor Vehicles;
(f) all General Intangibles;
(g) all Instruments, including all Pledged Securities;
(h) all Inventory or improvements todocuments of title, customs receipts, insurance certificates, shipping documents, and other written materials related to the purchase or import of any Inventory;
(i) all proceeds Investment Property;
(j) all Intellectual Property;
(k) all Pledged Collateral;
(l) all letters of credit under which such Grantor is the beneficiary and products ofLetter of Credit Rights;
(m) all Supporting Obligations;
(n) all cash and cash equivalents;
(o) all Commercial Tort Claims of such Grantor described in Schedule 2 hereto in respect of such Grantor (as such schedule may be supplemented from time to time pursuant to any Security Agreement Supplement or otherwise);
(p) all other Goods;
(q) all Records and all books and records (including customer lists, files, correspondence, tapes, computer programs, print-outs and computer records) pertaining to the Collateral;
(r) all other personal property whatsoever of the foregoingsuch Grantor;
(s) all other assets, properties and rights of every kind and description and interests therein, including proceeds of insurance whether all moneys, securities and other property, now owned or hereafter acquired by the Debtorheld or received by, or in which transit to, any Grantor, the Debtor may now have Collateral Agent or hereafter acquire an interestany other Secured Party, whether for safekeeping, pledge, custody, transmission, collection or otherwise; and
(et) All booksall Proceeds, records, documents, computer tapes all accessions to and discs relating to substitutions and replacements for and products of any and all of the foregoing and all offsprings, rent 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 notwithstanding anything to the contrary in clauses (a) through (t) above:
(i) any General Intangible, License, Chattel Paper or Instrument which by its terms prohibits the creation of a security interest therein (whether now by assignment or otherwise) shall be excluded from the Lien of the Security Interest granted under this Section 3.01, and shall not be included in the Collateral of such Grantor, except to the extent that (but subject to the limitations of) Sections 9-406(d), 9-407(a) or 9-408 of the UCC or any other applicable law or the principles of equity are effective to render any such prohibition ineffective; provided, however, that if any General Intangible, License, Chattel Paper, Instrument or Account included in the Collateral contains any term restricting or requiring the consent of any Person (other than a Grantor) obligated thereon to any exercise of remedies hereunder in respect of the Security Interest therein granted under this Section 3.01, then the enforcement of such Security Interest under this Agreement shall be subject to Section 6.01(c) (but such provision shall not limit the creation, attachment or perfection of the Security Interest hereunder);
(ii) any permit, lease, license (including any License) or franchise shall be excluded from the Lien of the Security Interest granted under this Section 3.01, and shall not be included in the Collateral, only to the extent any Law applicable thereto is effective to prohibit the creation of a Security Interest therein;
(iii) any Equipment (including any Software incorporated herein) owned by any Grantor on the Effective Date or hereafter acquired by that is subject to a Lien securing a purchase money obligation or Capitalized Lease permitted to be incurred pursuant to the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting provisions of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising each Secured Agreement shall be excluded from the sale, delivery or provision Lien of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in Security Interest granted under this Security Agreement coversSection 3.01, and is intended to cover, all assets of shall not be included in the Debtor. For avoidance of doubt, it is expressly understood and agreed thatCollateral, to the extent that the Uniform Commercial Code contract or other agreement in which such Lien is granted ("UCC"or the documentation providing for such purchase money obligation or Capitalized Lease) is revised subsequent validly prohibits the creation of any other Lien on such Collateral;
(iv) any “intent-to-use” trademark application for registration filed pursuant to Section 1(b) of the Xxxxxx Xxx, 00 X.X.X. §0000, prior to the date hereof such that the definition of any filing under Section 1(c) or Section 1(d) of the foregoing terms included in Xxxxxx Act of a “Statement of Use” or an “Amendment to Allege Use” with respect thereto, shall be excluded from the description Lien of Collateral is changedthe Security Interest granted under this Section 3.01, the parties agree that any property which is included in such changed definitions which would and shall not otherwise be included in the foregoing Collateral, solely to the extent, if any, that, and solely during the period, if any, in which, the grant on of a Lien therein prior to such filing would impair the date hereof be validity or enforceability of any registration that issues from such intent-to-use trademark application under applicable federal law;
(v) prior to the first anniversary of the Effective Date, the Collateral shall not include tangible personal property located at 000 Xxxxxxxx Xxxxx xx Xxxxxxxxx, XX; and
(vi) the Collateral shall not include more than 65% of the aggregate issued and outstanding voting equity interests of any Foreign Subsidiary, or any assets of any Foreign Subsidiary. With respect to property described in clauses (i) through (vi) above to the extent not included in such grant immediately upon the effective date Collateral of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 Grantor (the "Security Interests") are granted “Excluded Property”), such property shall constitute Excluded Property only to the extent and for so long as security only and shall not subject the Secured Party to, or transfer or creation of a Lien on such property in any way affect or modify, any obligation or liability of the Debtor under any favor of the Collateral Agent is, and remains, validly prohibited, and upon termination of such prohibition (however occurring), such property shall cease to constitute Excluded Property and a Lien shall attach immediately at such time as the condition causing such restriction shall be remedied or any transaction which gave rise theretois otherwise not in existence. The Grantors may be required from time to time at the request of the Collateral Agent to give written notice to the Collateral Agent identifying in reasonable detail the Excluded Property (and stating in such notice that such property constitutes Excluded Property) and to provide the Collateral Agent with such other information regarding the Excluded Property as the Collateral Agent may reasonably request.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
The Security Interests. (A) In order (i) to secure the due and punctual payment of the Note, (ii) to secure the and performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor Loan Obligations owing to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or from time to become due (all of the foregoing hereinafter called the "Obligations")time, the Debtor hereby grants to the Secured Party a continuing lien and security interest in in, and hereby assigns to the Secured Party as collateral security, the following described fixtures property and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property interests of the Debtor, whether now owned or hereafter acquired by or existing, and wherever located (collectively, the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including without limitation:"Collateral"):
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral")Accounts;
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, all present and future contract rights, contractsgeneral intangibles (including, leasesbut not limited to, tax and duty refunds, registered and unregistered patents, trademarks, service marks, copyrights, trade names, applications for the foregoing, trade secrets, goodwill, processes, drawings, blueprints, customer lists, licenses, whether as licensor or licensee (to the extent that the granting of the Secured Party's lien and security interest therein will not cause a termination of such licenses or result in the loss of the benefits of such licenses to the Debtor), choses in action and other claims and existing and future leasehold interests in equipment, real estate and fixtures, those intangibles set forth in Schedule 1 annexed hereto, and the right to xxx for infringement and/or unauthorized use of any intangibles), chattel paper, electronic chattel paperdocuments, commercial tort claimsinstruments, insurance refund claims letters of credit, bankers' acceptances and guaranties; provided, however, the Collateral shall not include any license agreements or comparable agreements relating to the use of intellectual property granted by Lanxide Corporation to the Debtor at any time and from time to time;
(c) all present and future monies, securities, credit balances, deposits, deposit accounts and other insurance claims and proceeds, and general intangibles property of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development)now or hereafter held or received by or in transit to the Secured Party or its affiliates or at any other depository or other institution from or for the account of the Secured Party, whether now owned for safekeeping, pledge, custody, transmission, collection or hereafter acquired by the Debtorotherwise, or and all present and future liens, security interests, rights, remedies, title and interest in, to and in which the Debtor may now have or hereafter acquire an interestrespect of Accounts and other Collateral, including, without limitation, all (i) rights and remedies under or relating to guaranties, contracts of the Debtor's rights under all present suretyship, letters of credit and further authorizations, permits, licenses credit and franchises heretofore or hereafter granted other insurance related to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law(ii) rights of stoppage in transit, all replevin, repossession, reclamation and other rights incident to appurtenant to such licenses and permitsremedies of an unpaid vendor, lienor or secured party, (iii) goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, Accounts or other Collateral, including, without limitation, returned, repossessed and reclaimed goods, and (iv) deposits by and property of account debtors or other persons securing the right to receive all proceeds derived from or in connection with the sale, assignment or transfer obligations of such licenses and permits)account debtors;
(cd) All instruments, documents of title, letters of credit, rights to all Inventory;
(e) all Equipment;
(f) all Records; and
(g) all products and proceeds of letters of creditthe foregoing, letter of credit rightsin any form, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or improvements to, insurance proceeds and all proceeds and products of, claims against third parties for loss or damage to or destruction of any or all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
(e) All books, records, documents, computer tapes and discs relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
Samples: Security Agreement (Lanxide Corp)
The Security Interests. (Aa) In order (i) to secure the due and punctual payment and performance of (i) that certain Guaranty Agreement of the NoteDebtors in favor of the Secured Party dated as of the date hereof, as amended from time to time (as amended from time to time, the “Guaranty Agreement”) pursuant to which the Debtors have guaranteed the payment and performance of all obligations, liabilities and indebtedness of QUALITY GOLD, INC., an Ohio corporation (“Quality Gold”) and MTM, INC., a Delaware corporation (“MTM”) (Quality Gold and MTM are hereinafter sometimes collectively referred to herein as the “Borrowers”) to the Secured Party, including without limitation, all obligations, liabilities and indebtedness of the Borrowers to Secured Party pursuant to that certain Master Bullion Consignment Agreement among the Borrowers and the Secured Party dated as of the date hereof, as amended from time to time (as amended, the “Consignment Agreement”), and (ii) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor Debtors or the Borrowers by the Secured Party and the due and punctual payment and performance of all other indebtedness, liabilities and obligations of the Debtor Debtors and the Borrowers to the Secured Party Party, of every kind and description, whether direct, indirect or contingent, now or hereafter existing, due or to become due due, and howsoever arising, incurred or evidenced (all of the foregoing are hereinafter called the "“Secured Obligations"”), the Debtor Debtors hereby grants grant to the Secured Party a continuing security interest in the following described fixtures and personal property (hereinafter collectively called the "“Collateral"”): All fixtures and all tangible and intangible personal property of the DebtorDebtors, whether now owned or hereafter acquired by the DebtorDebtors, or in which the Debtor Debtors may now have or hereafter acquire an interest, including including, without limitation:
, (a) all equipment Equipment (including all machinery, tools and furniture), all inventory Inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goodsGoods, whether now owned or hereafter acquired by the DebtorDebtors or acquired on consignment, or in which the Debtor Debtors may now have or hereafter acquire an interest (the "“Tangible Collateral"”);
; (b) All accountsall Accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceedsChattel Paper, and general intangibles General Intangibles of the Debtor Debtors (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applicationstrademarks, tradenames, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the DebtorDebtors, or in which the Debtor Debtors may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
; (c) All instrumentsall Instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accountsDeposit Accounts, checking accounts, certificates of deposit accounts and cash, whether cash now owned or hereafter acquired owned by the DebtorDebtors, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or improvements to, and all proceeds and products of, all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor Debtors may now have or hereafter acquire an interest; and
(d) all the Debtors’ rights under consignment agreements with vendors of the Debtors’ memo programs and all security therefor; (e) All Commercial Tort Claims, Documents, Fixtures, Investment Property and Letter-of-Credit Rights presently owned or hereinafter acquired by the Debtors, including, without limitation, books and records, supporting obligations, contract rights or rights to the payment of money, trademarks, service marks, tradenames, copyrights and trade secrets, policies and certificates of insurance and all amounts payable to the Debtors or rights of the Debtors under or with respect to any such insurance, including, without limitation, all proceeds, refunds and premium rebates, whether any such proceeds, refunds and premium rebates, arise out of any of the foregoing, or otherwise, money, cash or other property, federal, state and local tax refunds and/or abatements to which the Debtors is, or shall become, entitled, no matter how or when arising, including, but not limited to, any carryback tax refunds, all liens, guarantees, rights, remedies and privileges pertaining to any of the foregoing, including the right of stoppage in transit; (f) all accessions, additions or improvements, to all replacements, substitutions and parts for, and all proceeds and products to all of the foregoing; and (g) all books, records, documents, computer tapes records and discs documents relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(Bb) All Collateral consisting of accountsAccounts, contract rights, chattel paperChattel Paper and General Intangibles of the Debtors, general intangibles whether now existing or hereafter existing, and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter hereafter collectively called the "“Customer Receivables"”.
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(Dc) The security interests granted pursuant to this Section 1 (the "“Security Interests"”) are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor Debtors under any of the Collateral or any transaction which gave rise thereto.
(Ed) Unless otherwise defined In the event that any of the contract rights would be or become voidable or would be violated on account of the security interest contemplated herein, or unless the context otherwise requires, all terms used herein which are defined security interest in the New York Uniform Commercial Code have specific contract right which requires such consent shall be void ab initio and in such event the meanings therein statedDebtors covenant and agree to exercise all of their rights and remedies under such contract at the direction of and for the benefit of the Secured Party.
Appears in 1 contract
The Security Interests. (A) In order (i) to secure the due and punctual payment of the Note, (ii) to secure the performance of all the obligations of the Debtor contained herein herein, and in the Note and the AssignmentLoan Agreement, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing hereinafter called the "Obligations"), the Debtor hereby grants to the Secured Party a continuing security interest in the following described fixtures and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including without limitation:
, (a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral");
; (b) All all accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applicationstrademarks, tradenames, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
; (c) All all instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit accounts and cash, whether cash now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or improvements to, and all proceeds and products of, all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
(d) all accessions, additions or improvements to, all replacements, substitutions and parts for, and all proceeds and products of, all of the foregoing; and (e) All all books, records, documents, computer tapes records and discs documents relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, paper and general intangibles and other Collateral described in subparagraph (b) above of the Debtor arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
The Security Interests. Each Grantor hereby collaterally assigns (Aexcept with respect to intent-to-use trademark applications, if any) In order (i) and pledges to secure the due Collateral Agent, its successors and punctual payment assigns, for the ratable benefit of the Note, (ii) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the AssignmentSecured Parties, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing hereinafter called the "Obligations"), the Debtor hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Party Parties, as security for the payment or performance in full of the Secured Obligations of such Grantor, a continuing security interest (the “Security Interest”) in all right, title and interest of such Grantor in, to and under any and all of the following described fixtures assets and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether properties now owned or at any time hereafter acquired by the Debtor, such Grantor or in which such Grantor now has or at any time in the Debtor future may now have acquire any right, title or hereafter acquire an interestinterest (collectively, including without limitation:the “Collateral”):
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral")Accounts;
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits)Chattel Paper;
(c) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind all cash and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interestDeposit Accounts;
(d) All accessionsall Documents;
(e) all Equipment, additions including all Fixtures;
(f) all General Intangibles;
(g) all Instruments;
(h) all Inventory;
(i) all Investment Property;
(j) all Pledged Collateral;
(k) all Supporting Obligations;
(l) all Commercial Tort Claims of such Grantor described in Schedule 2 hereto in respect of such Grantor (as such schedule may be supplemented from time to time pursuant to any Security Agreement Supplement or improvements otherwise);
(m) all other Goods;
(n) all books and records pertaining to the Collateral;
(o) all other assets, properties and rights of every kind and description and interests therein, including all moneys, securities and other property, now or hereafter held or received by, or in transit to, any Grantor, the Collateral Agent or any other Secured Party, whether for safekeeping, pledge, custody, transmission, collection or otherwise; and
(p) all Proceeds of any and all proceeds and products of, all of the foregoing; provided, however, that notwithstanding anything to the contrary in clauses (a) through (p) above:
(i) any General Intangible, Chattel Paper, Instrument or Account which by its terms prohibits the creation of a security interest therein (whether by assignment or otherwise) shall be excluded from the Lien of the Security Interest granted under this Section 3.01, and shall not be included in the Collateral of such Grantor, except to the extent that Sections 9-406(d), 9-407(a) or 9-408(a) of the UCC are effective to render any such prohibition ineffective; provided, however, that if any General Intangible, Chattel Paper, Instrument or Account included in the Collateral contains any term restricting or requiring the consent of any Person (other than a Grantor) obligated thereon to any exercise of remedies hereunder in respect of the Security Interest therein granted under this Section 3.01, then the enforcement of such Security Interest under this Agreement shall be subject to Section 6.01(c) (but such provision shall not limit the creation, attachment or perfection of the Security Interest hereunder);
(ii) any permit, lease, license (including proceeds any License) or franchise shall be excluded from the Lien of insurance whether now owned or hereafter acquired by the DebtorSecurity Interest granted under this Section 3.01, or and shall not be included in which the Debtor may now have or hereafter acquire an interestCollateral, to the extent any Law applicable thereto is effective to prohibit the creation of a Security Interest therein; and
(eiii) All books, records, documents, computer tapes and discs relating to all of any Equipment (including any Software incorporated herein) owned by any Grantor on the foregoing, whether now owned date hereof or hereafter acquired by that is subject to a Lien securing a purchase money obligation or Capitalized Lease permitted to be incurred pursuant to the Debtor, or in which provisions of the Debtor may now have or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising Indenture shall be excluded from the sale, delivery or provision Lien of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in Security Interest granted under this Security Agreement coversSection 3.01, and is intended to cover, all assets of shall not be included in the Debtor. For avoidance of doubt, it is expressly understood and agreed thatCollateral, to the extent that the Uniform Commercial Code contract or other agreement in which such Lien is granted ("UCC"or the documentation providing for such purchase money obligation or Capitalized Lease) is revised subsequent validly prohibits the creation of any other Lien on such Collateral. With respect to property described in clauses (i) through (iii) above to the date hereof such that the definition of any of the foregoing terms extent not included in the description Collateral of such Grantor (the “Excluded Property”), such property shall constitute Excluded Property only to the extent and for so long as the creation of a Lien on such property in favor of the Collateral is changedAgent is, and remains, validly prohibited, and upon termination of such prohibition (however occurring), such property shall cease to constitute Excluded Property. The Grantors may be required from time to time at the request of the Collateral Agent to give written notice to the Collateral Agent identifying in reasonable detail the Excluded Property (and stating in such notice that such property constitutes Excluded Property) and to provide the Collateral Agent with such other information regarding the Excluded Property as the Collateral Agent may reasonable request. Notwithstanding anything herein to the contrary, the parties agree that any property which is included in such changed definitions which would not otherwise be included in lien and security interest granted to the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted Agent pursuant to this Section 1 (Agreement and the "Security Interests") exercise of certain rights and remedies by the Collateral Agent hereunder are granted as security only subordinated and shall not subject to the Secured Party to, or transfer or in any way affect or modify, any obligation or liability provisions of the Debtor under Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control; provided that nothing in the Intercreditor Agreement, as between the Collateral Agent, the other Second Lien Claimholders (as defined in the Intercreditor Agreement) and the Grantors, shall be deemed to waive any rights, protections, privileges, immunities or indemnities of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined Agent as set forth in the New York Uniform Commercial Code have Indenture and the meanings therein statedSecurity Documents. Notwithstanding anything herein to the contrary, prior to the Discharge of First Lien Obligations, the requirements of this Agreement to deliver Pledged Collateral and Collateral and any certificates, instruments or Documents in relation thereto to the Collateral Agent shall be deemed satisfied by delivery of such Collateral and such certificates, instruments or Documents in relation thereto to the Administrative Agent (as bailee for the Collateral Agent). Each Grantor shall provide a prompt written notice to the Collateral Agent describing all certificates, instruments, Documents or other Collateral delivered to the Administrative Agent pursuant to the immediately preceding sentence.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Cenveo, Inc)
The Security Interests. (A) In order to secure (i) to secure the due and punctual payment of that certain Time Note of the Debtor of even date herewith issued by the Debtor to the Secured Party in the principal amount of $975,000, as the same may be amended, modified, extended, supplemented or replaced from time to time (the “Note”), and (ii) to secure the due and punctual payment and performance of all the obligations of the Debtor contained herein and in the Note and the Assignmentherein, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing are hereinafter called the "“Obligations"”), the Debtor hereby grants to the Secured Party a continuing security interest in the following described fixtures and personal property (hereinafter collectively called the "“Collateral"”): All fixtures and all tangible and intangible personal property of the Debtor, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including without limitation:
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral");
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), each case whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, (a) all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business equipment (including within the definition of Collateralall machinery, to the maximum extent permitted by lawtools and furniture), inventory (including all rights incident to appurtenant to such licenses merchandise, raw materials, work in process, finished goods and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permitssupplies);
(c) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreementsgoods, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, in each case whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest;
interest (dthe “Tangible Collateral”); (b) All accessionsall accounts, additions or improvements toaccounts receivable, other receivables, contracts, payment intangibles, letters of credit, letter-of-credit rights, chattel paper, electronic chattel paper and general intangibles of the Debtor (including, without limitation, customer lists, goodwill, patents, trademarks, tradenames, blueprints, designs, product lines and research and development), and all proceeds and products ofsupporting obligations, all of the foregoing, including proceeds of insurance in each case whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
(ec) All booksall instruments, recordsdocuments of title, documents, computer tapes policies and discs relating to all certificates of the foregoinginsurance, securities, securities entitlements, investment property, partnership interests, membership interests, limited liability company interests, bank deposits, deposit accounts, checking accounts, certificates of deposit, and cash, in each case whether now owned or hereafter acquired owned by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; (d) in accordance with Section 1(D) hereof, all commercial tort claims of the Debtor, whether now existing or hereafter arising, including all such commercial tort claims described in Exhibit C hereto; (e) all accessions, additions or improvements to, all replacements, substitutions and parts for, and all proceeds and products of, all of the foregoing; and (f) all books, records and documents relating to all of the foregoing and all computer records, software and computer disks and tapes relating to the foregoing.
(B) All terms appearing in the foregoing description of Collateral shall have the respective meanings given to such terms in the Uniform Commercial Code. All Collateral consisting of accounts, contract rightscontracts, chattel paper, paper and general intangibles of the Debtor, whether now existing or hereafter arising, and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "“Customer Receivables".”
(C) The security interests granted pursuant to this Section 1 (the “Security Interests”) are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor hereby acknowledges under any of the Collateral or any transaction which gave rise thereto.
(D) If the Debtor shall at any time acquire a commercial tort claim, as defined in Revised Article 9 of the Uniform Commercial Code, the Debtor shall immediately notify the Secured Party in writing of the details thereof and agrees that shall grant to the description Secured Party in writing a security interest therein and in the proceeds thereof, all on the terms of Collateral contained in this Security Agreement coversAgreement, and is intended in writing in form and substance reasonably satisfactory to cover, all assets of the Debtor. Secured Party.
(E) For avoidance of doubt, doubt it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
Appears in 1 contract
The Security Interests. (Aa) In order (i) to secure the due and punctual payment and performance of (i) that certain Master Bullion Consignment Agreement between the Debtors and the Secured Party dated as of the Notedate hereof, as amended from time to time (as amended, the “Consignment Agreement”), and (ii) to secure the performance of all the obligations of the Debtor contained herein and in the Note and the Assignment, and (iii) to secure the payment of all other future advances to the Debtor Debtors by the Secured Party and the due and punctual payment and performance of all other indebtedness, liabilities and obligations of the Debtor Debtors to the Secured Party Party, of every kind and description, whether direct, indirect or contingent, now or hereafter existing, due or to become due due, and howsoever arising, incurred or evidenced, including all products and services provided to the Debtors by the Secured Party (all of the foregoing are hereinafter called the "“Secured Obligations"”), the Debtor Debtors hereby grants grant to the Secured Party a continuing security interest in the following described fixtures and personal property (hereinafter collectively called the "“Collateral"”): All fixtures and all tangible and intangible personal property of the DebtorDebtors, whether now owned or hereafter acquired by the DebtorDebtors, or in which the Debtor Debtors may now have or hereafter acquire an interest, including including, without limitation:
, (a) all equipment Equipment (including all machinery, tools and furniture), all inventory Inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goodsGoods, whether now owned or hereafter acquired by the DebtorDebtors or acquired on consignment, or in which the Debtor Debtors may now have or hereafter acquire an interest (the "“Tangible Collateral"”);
; (b) All accountsall Accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel Chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles General Intangibles of the Debtor Debtors (including, without limitation, all tax refund claimsgoodwill. Patents, goodwilltrademarks, going concern value, patents, patent applicationstradenames, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired product by the DebtorDebtors, or in which the Debtor Debtors may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
; (c) All instrumentsall Instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accountsDeposit Accounts, checking accounts, certificates of deposit accounts and cash, whether cash now owned or hereafter acquired owned by the DebtorDebtors, or in which the Debtor may now have or hereafter acquire an interest;
(d) All accessions, additions or improvements to, and all proceeds and products of, all of the foregoing, including proceeds of insurance whether now owned or hereafter acquired by the Debtor, or in which the Debtor Debtors may now have or hereafter acquire an interest; and
(d) all the Debtors’ rights under consignment agreements with vendors of the Debtors’ memo programs and all security therefor; (e) All Commercial Tort Claims, Documents, Fixtures, Investment Property and Letter-of-Credit Rights presently owned or hereinafter acquired by the Debtors, including, without limitation, books and records, supporting obligations, contract rights or rights to the payment of money, trademarks, service marks, tradenames, copyrights and trade secrets, policies and certificates of insurance and all amounts payable to the Debtors or rights of the Debtors under or with respect to any such insurance, including, without limitation, all proceeds, refunds and premium rebates, whether any such proceeds, refunds and premium rebates, arise out of any of the foregoing, or otherwise, money, cash or other property, federal, state and local tax refunds and/or abatements to which the Debtors is, or shall become, entitled, no matter how or when arising, including, but not limited to, any carryback tax refunds, all liens, guarantees, rights, remedies and privileges pertaining to any of the foregoing, including the right of stoppage in transit; (f) all accessions, additions or improvements, to all replacements, substitutions and parts for, and all proceeds and products to all of the foregoing; and (g) all books, records, documents, computer tapes records and discs documents relating to all of the foregoing, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest.
(Bb) All Collateral consisting of accountsAccounts, contract rights, chattel paperChattel paper and General Intangibles of the Debtors, general intangibles whether now existing or hereafter existing, and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter hereafter collectively called the "“Customer Receivables"”.
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(Dc) The security interests granted pursuant to this Section section 1 (the "“Security Interests"”) are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor Debtors under any of the Collateral or any transaction which gave rise thereto.
(Ed) Unless otherwise defined In the event that any of the contract rights would be or become voidable or would be violated on account of the security interest contemplated herein, or unless the context otherwise requires, all terms used herein which are defined security interest in the New York Uniform Commercial Code have specific contract right which requires such consent shall be void ab initio and in such event the meanings therein statedDebtors covenant and agree to exercise all of their rights and remedies under such contract at the direction of and for the benefit of the Secured Party.
Appears in 1 contract
The Security Interests. (Aa) In order As security for the prompt and complete payment and performance when due of all of its Secured Obligations, each Grantor does hereby (i) to secure pledge, assign, hypothecate, set over and convey unto the due and punctual payment Collateral Agent for the benefit of the NoteUS Creditors, (ii) and does hereby grant to secure the performance of all Collateral Agent for the obligations benefit of the Debtor contained herein and in the Note and the AssignmentUS Creditors, and (iii) to secure the payment of all other future advances to the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor to the Secured Party of every kind and description, direct, indirect or contingent, now or hereafter existing, due or to become due (all of the foregoing hereinafter called the "Obligations"), the Debtor hereby grants to the Secured Party a continuing security interest in the following described fixtures and personal property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including without limitation:
(a) all equipment (including all machinery, tools and furniture), all inventory (including all merchandise, raw materials, work in process, finished goods and supplies), motor vehicles and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest (the "Tangible Collateral");
(b) All accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims and other insurance claims and proceeds, and general intangibles of the Debtor (including, without limitation, all tax refund claims, goodwill, going concern value, patents, patent applications, blueprints, designs, computer programs, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, all of the Debtor's rights under all present and further authorizations, permits, licenses and franchises heretofore or hereafter granted to the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits);
(c) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in of such Grantor in, to and to all limited liability companies and partnerships and to any successor business entities, and the right to receive all payments and distributions due or to become due under all related partnership agreements, operation agreements, of the Collateral (and other constituent documents governing or establishing all rights therein) of such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the DebtorGrantor, or in which the Debtor may or to which such Grantor has any rights, in each case, whether now have existing or hereafter acquire an interest;
from time to time acquired, (dii) All accessionsseparately pledge, additions or improvements toassign, hypothecate, set over and convey unto the Collateral Agent for the benefit of the Canadian Creditors, and all proceeds and products ofdoes hereby separately grant to the Collateral Agent for the benefit of the Canadian Creditors, a separate continuing security interest in all of the foregoingright, including proceeds title and interest of insurance whether now owned or hereafter acquired by such Grantor in, to and under all of the DebtorCollateral (and all rights therein) of such Grantor, or in which the Debtor may or to which such Grantor has any rights, in each case, whether now have existing or hereafter acquire an interest; and
from time to time acquired and (eiii) All booksseparately pledge, recordsassign, documentshypothecate, computer tapes set over and discs relating convey unto the Collateral Agent for the benefit of the Swap Providers, and does hereby separately grant to the Collateral Agent for the benefit of the Swap Providers, a separate continuing security interest in all of the foregoingright, whether now owned or hereafter acquired by title and interest of such Grantor in, to and under all of the DebtorCollateral (and all rights therein) of such Grantor, or in which the Debtor may or to which such Grantor has any rights, in each case, whether now have existing or hereafter acquire an interestfrom time to time acquired.
(B) All Collateral consisting of accounts, contract rights, chattel paper, general intangibles and other Collateral described in subparagraph (b) above arising from Notwithstanding anything to the salecontrary contained in this Section or elsewhere in this Agreement, delivery or provision each Grantor and the Collateral Agent (on behalf of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables".
(CSecured Creditors) The Debtor hereby acknowledges and agrees that (i) the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included US Creditors' security interest in the description of Collateral is changedCollateral, the parties agree that any property which is included in such changed definitions which would not otherwise be included Canadian Creditors' security interests in the foregoing grant on Collateral and the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The Swap Providers' security interests granted pursuant to this Section 1 in the Collateral constitute security interests separate and apart from each other, (ii) the "Security Interests") are granted as grants of security only interest hereunder constitute three separate and shall not subject the Secured Party todistinct grants of security, or transfer or one in any way affect or modify, any obligation or liability of the Debtor under any favor of the Collateral or any transaction which gave rise thereto.
Agent for the benefit of the US Creditors, the second in favor of the Collateral Agent for the benefit of the Canadian Creditors and the third in favor of the Collateral Agent for the benefit of the Swap Providers and (Eiii) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have event of any conflict between the meanings therein statedprovisions of this Agreement and the provisions of the Canadian Loan Documents or the Hedging Transactions, the terms of this Agreement shall prevail.
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The Security Interests. (Aa) In order to secure: (i) to secure the performance of all obligations of the Borrower under the Credit Agreement; (ii) the due and punctual payment in full (and not merely the collectibility) of the Note, (ii) to secure including without limitation all principal thereof and all interest payable thereon, at the performance of all interest rates provided therein and in the obligations Credit Agreement and regardless of the extent allowed as a claim in any proceeding in respect of the bankruptcy, reorganization or insolvency of the Borrower, the Debtor contained herein or any of their respective Affiliates (a "Reorganization"), in each case when due and in payable, according to the terms of the Note and the AssignmentCredit Agreement, and whether at stated maturity, by reason of acceleration or otherwise; (iii) the due and punctual payment in full (and not merely the collectibility) of all other sums and charges which may at any time be due and payable in accordance with, or under the terms of, the Note or the Credit Agreement, whether at stated maturity, by reason of acceleration or otherwise; (iv) the due and punctual payment in full (and not merely the collectibility) of the Guaranty; (v) the due and punctual payment in full of all such Rate Hedging Obligations as may be due from time to secure time; (vi) the due and punctual payment in full (and not merely the collectibility), performance and observance of all of the other indebtedness, liabilities, obligations, terms, covenants and conditions contained in the Loan Documents, whether now or hereafter existing, on the part of the Borrower, the Debtor or any of their respective Affiliates to be paid, performed or observed; (vii) the accuracy of the representations and warranties made by the Borrower, the Debtor and their respective Affiliates in the Loan Documents; and (viii) the due and punctual payment and performance in full (and not merely the collectibility) of any and all other future advances to and other obligations, indebtedness, obligations and liabilities of the Borrower, the Debtor by the Secured Party and all other indebtedness, liabilities and obligations of the Debtor their respective Affiliates to the Secured Party Parties and the Agent of every kind and description, whether now existing or hereafter arising, whether direct, indirect or contingent, now whether secured or hereafter existingunsecured, due and howsoever evidenced, incurred or arising, including without limitation any future loans and advances made to become due the Borrower or any Debtor by any of the Secured Parties prior to, during or following any Reorganization (all of the foregoing are collectively hereinafter called the "Obligations"), the Debtor hereby grants to the Agent and each of the Secured Party Parties a continuing security interest in and a collateral assignment and pledge of, the following described fixtures and personal property, in each case to the extent, and only to the extent, it is lawful to grant a security interest in and collaterally assign and pledge such property (hereinafter collectively called the "Collateral"): All fixtures and all tangible and intangible personal property of the Debtor, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including without limitation:
, the following property: (aA) all properties and assets of every type used or useful in connection with the ownership or operation of broadcast television stations and any and all other communication businesses (collectively, "Communication Businesses"); (B) all equipment (including including, without limitation, all machinery, tools motor vehicles, tools, furniture, studio equipment, towers, transmitters, translators, antennas, satellite dishes, and furnitureall other equipment relating to the operation of Communications Businesses), all inventory (including including, without limitation, all merchandise, raw materials, work in process, finished goods goods, and supplies), motor vehicles ) and goods, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest interest; (the "Tangible Collateral");
(bC) All all accounts, accounts receivable, rights to the payment of money, payment intangibles, other receivables, contract rights, contracts, leases, chattel paper, electronic chattel paper, commercial tort claims, insurance refund claims receivable and other insurance claims and proceeds, and general intangibles of the Debtor receivables (including, without limitation, intercompany receivables, rights to receive payments of money under contracts, chattel paper and rights to receive payments of money under leases) and general intangibles (including, without limitation, (i) all limited liability company member interests now or hereafter held by or issued to the Debtor, subject to the limitation set forth below, (ii) all existing and future rights of the Debtor to any refund of any tax refund claimsassessed against or paid by the Debtor, loss carryback tax refunds, insurance premium refunds, unearned premiums, insurance proceeds, chooses in action, goodwill, going concern value, trademarks, service marks, tradenames, patents, patent applications, blueprints, designs, computer programsproduct lines, software, service marks, trademarks, trademark applications, inventions, trade names, customer lists, product lines and research and development, and all of the Debtor's rights to receive payments of money as a tenant under any and all leases, (iii) all of the Debtor's rights under all present and future authorizations, permits and licenses heretofore or hereafter granted or assigned to the Debtor by the Federal Communications Commission (the "FCC") or any other public or governmental agency or regulatory body for the operation and ownership of broadcast television stations and or other Communications Businesses (such authorizations, licenses and permits, together with any extensions or renewals thereof, being referred to collectively as the "Licenses") (excluding, however, any such Licenses to the extent, and only to the extent, it is unlawful to grant a security interest in such Licenses, but including, to the maximum extent permitted by law, all rights incident or appurtenant to such Licenses, including, without limitation, the right to receive all proceeds derived or arising from or in connection with the sale, assignment or transfer of such Licenses), whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest, including, without limitation, (iv) all of the Debtor's rights under all present construction contracts, satellite broadcasting distribution agreements and further authorizationslicenses, leases, permits, licenses authorizations and franchises heretofore or hereafter granted other agreements granting to such the Debtor for the operation of the Debtor's business (including within the definition of Collateral, to the maximum extent permitted by law, all rights incident to appurtenant to such licenses and permits, including, without limitation, the right to receive construct, operate, and maintain television stations, communications cable, wire or line, whether now existing or hereafter arising (excluding, however, any Specified Contract, as defined below); (v) all proceeds derived from management agreements, programming agreements, network affiliation agreements and all other agreements for the provision of management, engineering or similar services, microwave or earth station service agreements, and other similar agreements to which the Debtor is a party (excluding, however, any Specified Contract); and (vi) all other agreements relating to Communications Businesses whether now owned or hereafter acquired by the Debtor, or in connection with which the saleDebtor may now have or hereafter acquire an interest (excluding, assignment or transfer of such licenses however, any Specified Contract); and permits);
(cvii) All instruments, documents of title, letters of credit, rights to proceeds of letters of credit, letter of credit rights, supporting obligations of every kind and description, policies and certificates of insurance, securities, securities entitlements, investment property, partnership interests, membership interests in limited liability companies (including, without limitation, all of the Debtors' right, title and interest in and to all limited liability companies and partnerships and to interest, if any, under any successor business entitiesintercompany notes, and the right to receive all payments and distributions due obligations or to become due under all related partnership agreements, operation agreements, and other constituent documents governing or establishing such business entities), bank deposits, deposit accounts, checking accounts, certificates of deposit and cash, whether now owned or hereafter acquired by the Debtor, or in which the Debtor may now have or hereafter acquire an interest;
; (dD) All accessionsall investment property, additions securities and other equity interests now or improvements tohereafter held by or issued to the Debtor, and all proceeds and products ofincluding, without limitation, all shares of the foregoingstock, including proceeds warrants, options, notes, investment contracts, partnership interests and member interests in limited liability companies; (E) all instruments, documents of insurance whether title, policies and certificates of insurance, securities, bank deposits, deposit accounts, checking accounts and cash now owned or hereafter acquired owned by the Debtor, or in which the Debtor may now have or hereafter acquire an interest; and
(eF) All all accessions, additions or improvements to, all replacements, substitutions and parts for, and all proceeds and products of, and all distributions and dividends relating to, all of the foregoing, including, without limitation, proceeds of insurance; and (G) all books, records, documents, computer tapes records and discs documents relating to all of the foregoing. The foregoing includes, without limitation, all of Debtor's right, title and interest (whether now owned or hereafter acquired by the Debtorarising) in and to ACME TELEVISION HOLDINGS OF UTAH, L.L.C., and ACME TELEVISION OF UTAH, L.L.C., ACME TELEVISION LICENSES OF UTAH, L.L.C., ACME TELEVISION HOLDINGS OF NEW MEXICO, L.L.C., ACME TELEVISION LICENSES OF NEW MEXICO, L.L.C. and ACME TELEVISION OF NEW MEXICO, L.L.C., including, without limitation, all right to receive any distributions or in which the Debtor may now have payments due or hereafter acquire an interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper, to become due under such membership agreement and other agreements and all general intangibles relating thereto and other Collateral described in subparagraph (b) above arising from the sale, delivery or provision of goods and/or services are sometimes hereinafter collectively called the "Customer Receivables"proceeds resulting therefrom.
(C) The Debtor hereby acknowledges and agrees that the description of Collateral contained in this Security Agreement covers, and is intended to cover, all assets of the Debtor. For avoidance of doubt, it is expressly understood and agreed that, to the extent that the Uniform Commercial Code ("UCC") is revised subsequent to the date hereof such that the definition of any of the foregoing terms included in the description of Collateral is changed, the parties agree that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of such revision, it being the intention of the parties hereto that the description of Collateral set forth herein be construed to include the broadest possible range of property and assets and all tangible and intangible personal property and fixtures of the Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the "Security Interests") are granted as security only and shall not subject the Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Debtor under any of the Collateral or any transaction which gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the New York Uniform Commercial Code have the meanings therein stated.
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Samples: Security and Pledge Agreement (Acme Television LLC)
