Accounts. With respect to the Accounts, and without limiting Lender’s rights above: (a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender. (b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name. (c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts. (d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT (e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse. (f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate. (g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts. (h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 2 contracts
Sources: Credit Agreement (ADESTO TECHNOLOGIES Corp), Credit Agreement (ADESTO TECHNOLOGIES Corp)
Accounts. With respect to 22.35.1 The Parent, the AccountsBorrower, Holdco and without limiting Lender’s rights aboveOpco shall:
(a) Lender may direct any or ensure that within 5 Business Days following the Closing Date the Borrower Proceeds Account (as defined in the June 2009 Senior Facilities Agreement) is closed and all Account Debtors to make payment directly to Lender or to a specified agent of Lender.credit balances are transferred into the Borrower Business Account; and
(b) Lender instruct the Account Bank (as this term is defined in the June 2009 Senior Facilities Agreement), in the agreed form and as soon as possible on or after the Closing Date, to give effect to the closures and transfers referred to in (a) above.
22.35.2 With effect from the Closing Date and thereafter until the Final Discharge Date, the Parent, the Borrower, Holdco and Opco shall ensure that:
(a) neither the Borrower, Holdco or Opco open any bank account other than the Transaction Accounts, without the prior consent of the Senior Agent;
(b) all bank accounts of the Borrower, Holdco and Opco (other than the Disbursements Accounts) shall be opened and maintained with the Account Bank in accordance with the provisions of the Finance Documents and are subject to valid Security under the Transaction Security Documents;
(c) all Disbursements Accounts of the Borrower, Holdco and Opco shall be opened and maintained with the Disbursements Account Bank in accordance with the provisions of the Finance Documents and are subject to valid Security under the Transaction Security Documents; and
(d) no amounts are transferred into the Borrower WCF Account other than the proceeds of utilisations under the Working Capital Facility Agreement and an amount of up to R20,000,000, which may, prior to the Closing Date, be transferred from any Transaction Account into the WCF Account (and which amount may demand, collect, receive and give receipts be used for any purpose for which utilisations under the Working Capital Facility Agreement may be used).
22.35.3 By no later than 10 (ten) Business Days prior to the Closing Date:
(a) each of Holdco and Opco shall open a disbursement account and the Borrower shall open such number of disbursement accounts as may be agreed to between the Senior Agent and the Borrower (each a Disbursement Account) in South Africa with the Disbursements Account Bank denominated in Rand and shall maintain the Disbursement Accounts for a period of not less than 30 (thirty) days following the Closing Date.
22.35.4 With effect from the Closing Date and thereafter until the Final Discharge Date:
(a) the Borrower shall maintain the Borrower Business Account and the Borrower WCF Account in South Africa in its name with Standard Bank denominated in Rand;
(b) Holdco shall maintain (and the Borrower shall ensure that Holdco maintains) the Holdco Business Account in South Africa in its name with Standard Bank denominated in Rand; and
(c) Opco shall maintain (and the Borrower and Holdco shall ensure that Opco maintains) the Opco Business Account in South Africa in its name with Standard Bank.
22.35.5 With effect from the Closing Date and thereafter until the Final Discharge Date, without the prior written consent of the Senior Agent:
(a) the Borrower shall not open or maintain any bank, deposit, savings or other account except for its respective Disbursement Accounts, the Borrower WCF Account and the Borrower Business Account;
(b) Holdco shall not (and the Borrower shall ensure that Holdco shall not) open or maintain any bank, deposit, savings or other account except for its respective Disbursement Account and the Holdco Business Account; and
(c) Opco shall not (and the Borrower and Holdco shall ensure that Opco shall not) open or maintain any bank, deposit, savings or other account except for its respective Disbursement Account and the Opco Business Account, any other account which holds Cash or Cash Equivalent Investments so long as those Cash or Cash Equivalent Investments become subject to the Transaction Security in form and substance satisfactory to the Senior Agent as soon as is reasonably practicable.
22.35.6 Each Transaction Account shall be a separate account at the Account Bank (or, in the case of the Disbursements Accounts, with the Disbursements Account Bank).
22.35.7 If the Borrower or Holdco receives any moneys for crediting to a Transaction Account in a currency other than in the currency of that Transaction Account, the Borrower shall request the Account Bank (or Disbursements Account Bank, as the case may be), to convert these moneys into the relevant currency of account at the Applicable Spot Rate of Exchange.
22.35.8 The Borrower shall at all money times indemnify and other property due keep indemnified the Senior Agent, the Security Agent and each Security SPV fully and effectually from and against all liabilities, costs and expenses which it may incur to the Account Bank, the Disbursements account Bank (or to become due their affiliates and/or nominees) in connection with the Accountsopening, in Lender’s operation or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency closure of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Transaction Account, including any act transaction charges, save to the extent that such liabilities, costs and expenses result from the negligence or omission which results in the loss or impairment wilful default of the Debtor’s AccountSenior Agent, including any act the Security Agent or omission which results in that Security SPV (as the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountscase may be).
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 2 contracts
Sources: Senior Facilities Agreement (Atlatsa Resources Corp), Senior Term Loan and Revolving Facilities Agreement (Atlatsa Resources Corp)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct As to each Account owed to the Borrower, such Account is (i) a bona fide existing payment obligation of the applicable Account Debtor created by the sale and delivery of Inventory or the rendition of services to such Account Debtor in the ordinary course of Borrower’s business and (ii) owed to Borrower without any known defenses, disputes, offsets, counterclaims, or all Account Debtors to make payment directly to Lender rights of return or to a specified agent of Lendercancellation.
(b) Lender may demandAs of the Closing Date, collectall Accounts of the Borrower and its Subsidiaries are lawfully owned by Borrower (other than as explicitly set forth on Schedule 3 to the Perfection Certificate as of the Closing Date, receive which are the only Accounts owned by any of the Borrower’s Subsidiaries and give receipts for any and all money and other property due or not by Borrower), and, without limiting the generality of the foregoing: (i) such Accounts are owed to become due the Borrower in connection with purchase orders or contracts issued by the Accountsapplicable Account Debtors to Borrower for the sale of Inventory or the rendition of services by Borrower to such Account Debtors, (ii) to the extent that a Subsidiary of Borrower receives a purchase order or contract for such sale of Inventory or rendition of services, its receipt of such purchase order or contract is solely in Lender’s its capacity as a service provider (a “Subsidiary Service Provider”) to Borrower pursuant to one of the Sales Support Services Agreements, and (iii) any invoice sent to the applicable Account Debtors in connection with such sale of Inventory or Debtor’s namerendition of services has been sent directly by Borrower to such Account Debtors. No Subsidiary Service Provider has any authority to sign or accept purchase orders or contracts on behalf of Borrower or to sign or issue invoices on behalf of Borrower. Each of the Sales Support Services Agreements (A) is in full force and effect and is binding upon and enforceable against each Person that is a party thereto in accordance with its terms, and (B) has not been amended or modified since the Closing Date.
(c) Lender may file No Subsidiary of Borrower has any claim and take any other action interest in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry Account other than as explicitly set forth on Schedule 3 to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the AccountsPerfection Certificate.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 2 contracts
Sources: Credit Agreement (Powerwave Technologies Inc), Credit Agreement (Powerwave Technologies Inc)
Accounts. With Investment of Funds in Series 2021-2 Accounts. If (i) no Potential Default or Event of Default with respect to Group 1 has occurred and is continuing and (ii) Cellco is the AccountsServicer, the Servicer may instruct the Indenture Trustee to invest any funds in the Series 2021-2 Accounts in Permitted Investments and, if investment instructions are received, the Indenture Trustee will direct the Qualified Institution maintaining the Series 2021-2 Accounts to invest the funds in the Distribution Account, the Reserve Account or the Principal Funding Account, as applicable, in those Permitted Investments. If (i) the Servicer fails to give investment instructions for any funds in the Distribution Account, the Reserve Account or the Principal Funding to the Indenture Trustee by 11:00 a.m. New York time (or other time as may be agreed by the Indenture Trustee) on the Business Day before a Payment Date or (ii) the Qualified Institution receives notice from the Indenture Trustee that a Potential Default with respect to Group 1 or Event of Default with respect to Group 1 has occurred and is continuing, the Qualified Institution will invest and reinvest funds in such Series 2021-2 Account according to the last investment instructions received, if any. If no prior investment instructions have been received or if the instructed investments are no longer available or permitted, the Indenture Trustee will notify the Servicer and request new investment instructions, and without limiting Lender’s rights above:
(a) Lender the funds will remain uninvested until new investment instructions are received. The Servicer may direct the Indenture Trustee to consent, vote, waive or take any other action, or all not to take any action, on any matters available to the holder of the Permitted Investments. If Cellco is not the Servicer, funds on deposit in the Distribution Account, the Reserve Account Debtors and the Principal Funding Account will remain uninvested. For so long as Cellco is the Servicer, any Permitted Investments of funds in the Series 2021-2 Accounts (or any reinvestments of the Permitted Investments) for a Collection Period must mature, if applicable, and be available no later than the second Business Day before the related Payment Date. Any Permitted Investments with a maturity date will be held to make payment directly to Lender their maturity, except that such Permitted Investments may be sold or to a specified agent disposed of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due before their maturity in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all sale of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the AccountsSeries 2021-2 Collateral under Section 5.6.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 2 contracts
Sources: Indenture (Verizon Master Trust), Indenture (Verizon Master Trust)
Accounts. With (a) Qualified Intermediary shall establish the Accounts during the term of this Agreement. The purpose of the Accounts, the procedures with respect to the Accountscollection, separation, consolidation, transfer and without limiting Lender’s rights above:
(a) Lender may direct any or all disbursement of funds with respect to each Account, the procedures with respect to the payment for Replacement Property, certain reporting requirements of the Exchangers, the investment of funds on deposit in the Exchange Account Debtors and funds transfer procedures with respect to make payment directly to Lender or to a specified agent of Lender.the Accounts are described in greater detail in Exhibit C.
(b) Lender may demandAs part of its assignment of the Relinquished Property Agreement to Qualified Intermediary pursuant to Section 2.1 above, collecteach Exchanger shall designate the Asset Class(es) of the Relinquished Property to which the Relinquished Property Agreement relates and as described in Exhibit A, receive and give receipts for any shall instruct Qualified Intermediary as to the amount of the Qualified Proceeds to be received pursuant to such Relinquished Property Agreement that is allocable to Relinquished Property of each such Asset Class designated by such Exchanger. Upon receipt of such instruction by the applicable Exchanger and all money and other property due or to become due in connection with of the AccountsQualified Proceeds from the Transferee, in Lender’s or Debtor’s nameQualified Intermediary shall deposit the Qualified Proceeds into the Exchange Account as instructed by such Exchanger hereunder.
(c) Lender may file any claim and take any other action Any funds on deposit in any court the Accounts shall be invested in Permitted Investments. Qualified Intermediary shall credit to the applicable Account, on a periodic basis or at the time of law or equity which Lender determines to be appropriate for the purpose of collecting any or all closing of the Accounts; providedaccount, howeverthe interest or other similar return earned, that Lender shall not be obligated if any, on funds on deposit in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) DebtorQualified Intermediary shall disburse, at Lender’s requestin the form of ACH credits or wire transfers, shallQualified Proceeds from the Exchange Account to one or more Disbursement Accounts for the acquisition of Replacement Property, as described in Section 4.2 above and to make non-Qualified Disbursements. In connection with any checks or EFT to be prepared and executed in accordance with this Section, Qualified Intermediary may appoint any person (including, without limitation, Exchanger as its agent for the limited purpose of preparing such checks and/or verifying such EFT disbursement or transfer files, and Lendermay appoint any person (including, at Lender’s option maywithout limitation, give notice the person designated as its agent for the purpose of preparing such checks and/or verifying such EFT disbursement or transfer files) as its attorney-in-fact with full power and authority to execute and deliver such checks and/or to verify the amounts of such EFT disbursement or transfer files payable with funds on deposit in form acceptable a Disbursement Account on behalf of Qualified Intermediary pursuant to Lender, to the Account Debtors: (i) a revocable limited power of Debtor’s grant of a security interest attorney in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement form attached as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTExhibit E hereto.
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guarantiesThe Exchange Account shall be a restricted account, and other documents each Exchanger shall have no right to pledge, borrow or otherwise obtain the benefits of Qualified Proceeds held in such Account, except as provided in Section 3.2(ii) above, Article IV above and property evidencing or securing to the Accounts extent not inconsistent with Treasury Regulation Section 1.1031(k)-1(g)(6). Upon a Disbursement Occurrence, funds, if any, contained in the same form as received by Debtor, each of Exchange Account which no longer constitute Qualified Proceeds shall be properly endorsed by Debtor transferred to Lender, with recoursethe applicable Exchanger.
(f) Lender All funds held in Accounts pursuant to this Agreement shall have only be transferred or disbursed upon the right joint written (including electronic) instruction of Qualified Intermediary and Exchanger. Nothing in this paragraph shall be construed to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines permit a disbursement to be appropriatedirected by either party except to the extent permitted by Treasury Regulations Section 1.1031(k)-1(g)(6)), Section 5.02 of Rev. Proc. 2003-39 and Section 5.1(e) hereof. Except in regard to the disbursement of Additional Subsidies for Non-Qualified Disbursements, Exchanger’s consent to a transfer or disbursement is intended solely to protect the integrity of Qualified Proceeds and Additional Subsidies from disbursement in circumstances inconsistent with the terms of this Agreement.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 2 contracts
Sources: Master Exchange Agreement, Master Exchange Agreement (United Rentals North America Inc)
Accounts. With respect Except as otherwise provided in this Section 4.2, the Debtor shall continue to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and at its own expense, all money and other property amounts due or to become due in to the Debtor with respect to Accounts and apply such amounts as are so collected to the outstanding balances thereof. In connection with such collections, the AccountsDebtor may take (and, in Lenderat Secured Party’s direction during the continuance or Debtor’s name.
(cany Default or Event of Default, shall take) Lender such action as the Debtor or Secured Party may file any claim and take any other action in any court of law deem necessary or equity which Lender determines advisable to be appropriate for the purpose of collecting any or all enforce collection of the Accounts; provided, however, that Lender . Secured Party shall not be obligated in have the right at any manner to make any demand time after the occurrence and during the continuance of a Default or to make any inquiry as to the nature or sufficiency an Event of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account DebtorsDefault to: (i) notify the Account Debtor under any Accounts (or any other Person obligated thereon) of Debtor’s grant the Lien granted upon such Accounts in favor of a security interest in the Accounts Secured Party and to Lenderdirect such Account Debtors and other Persons to make payment of all amounts due or to become due or otherwise render performance directly to Secured Party; and (ii) exercise the rights of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines the Debtor with respect to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals obligation of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Account Debtor to Lender, make payment or otherwise render performance to the Debtor and with recourse.
(f) Lender shall have respect to any property that secures the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any obligations of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Account Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, Person obligated on the sale or other disposition of which gives rise to an AccountCollateral; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; and (iii) settling any Account for less than adjust, settle or compromise the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the such Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following . After the occurrence and during the continuance of an Event of DefaultDefault all amounts and Proceeds received by the Debtor with respect to the Accounts shall be received in trust for the benefit of Secured Party, Debtor: (i) shall immediately pay or deliver such payment be segregated from other funds of the Debtor and shall be forthwith paid over to Lender Secured Party in the original same form as so received (with any necessary endorsement) to be held in which received by Debtor; (ii) shall endorse any Deposit Account pursuant to Lender, with recourse, all checks, drafts, money orders, notes, Section 4.12 and other instruments or documents representing applied pursuant to the Obligations in such payment; (iii) manner as the Secured Party may determine in its sole discretion. The Debtor shall not commingle such adjust, settle or compromise the amount or payment with of any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, releases credits and discounts in the ordinary course of its business and in amounts which are not material to the Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderwithout the prior consent of Secured Party.
Appears in 2 contracts
Sources: Security Agreement (FNDS3000 Corp), Security Agreement (FNDS3000 Corp)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or before the date of the first Loan, the Borrower shall establish with the Custodian as Securities Intermediary (i) a securities account (the “Collateral Account”) to which all Portfolio Assets will be credited, (ii) a securities account, which shall be a subaccount of the Collection Account, into which all interest proceeds from the Portfolio Assets and other Interest Collections will be deposited (the “Interest Collection Account”), (iii) a securities account, which shall be a subaccount of the Collection Account, into which all principal proceeds received in connection with the Portfolio Assets (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof up to the outstanding principal amount thereof) and other principal proceeds will be deposited (the “Principal Collection Account” and, together with the Interest Collection Account, the “Collection Account”), (iv) a securities account (the “Trust Account”) into which all cash received by the Borrower from the equity contributions made by the Equityholder, all Loan proceeds and any amounts transferred from the Principal Collection Account Debtors in accordance with the Principal Priority of Payments will be deposited and (v) a securities account (the “OC Ratio Posting Account”) into which funds related to make payment directly OC Ratio Posting Payments shall be deposited pursuant to Lender or to a specified agent of LenderSection 6. The Accounts shall be maintained in accordance with the Account Control Agreement.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due The only permitted withdrawal from or application of assets credited to become due the Collateral Account shall be to deliver such assets in connection with a sale, termination, repayment or other disposition of such asset against payment or exchange. Any cash payment received in connection with any such disposition shall be deposited into the AccountsCollection Account or paid to the Administrative Agent on behalf of the Lenders as provided herein, and any non-cash asset received in Lender’s or Debtor’s nameexchange shall be credited to the Collateral Account promptly.
(c) Lender may file The Borrower (or the Collateral Manager on behalf of the Borrower) shall instruct each obligor under the Portfolio Assets (or, with respect to any claim Agented Asset, the paying agent) to deliver all proceeds in respect of the Borrower Collateral to the Collection Account. The Borrower shall (or shall cause the Collateral Manager to), on a daily basis (on each Business Day), identify collections received in the Collection Account on the second prior Business Day in connection with the Portfolio Assets as either Principal Collections or Interest Collections and take any other action notify the Custodian of such determination. The Borrower (or the Collateral Manager on behalf of the Borrower) shall cause all Principal Collections received on behalf of the Portfolio Assets in the Collection Account to be promptly (but in any court event no later than one Business Day following receipt thereof) transferred by the Custodian to the Principal Collection Account. The Borrower (or the Collateral Manager on behalf of law or equity which Lender determines the Borrower) shall cause all Interest Collections received on behalf of the Portfolio Assets in the Collection Account to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated promptly (but in any manner event no later than one Business Day following receipt thereof) transferred by the Custodian to the Interest Collection Account. The only permitted withdrawal from or application of funds on deposit in the Collection Account, Principal Collection Account or Interest Collection Account shall be to make any demand payments expressly provided for in this Agreement or to make any inquiry as transfer funds to the nature or sufficiency of any payment received by it, or Trust Account in connection with a Reinvestment pursuant to present or file any claim or take any action to collect or enforce the payment of any or all of the AccountsSection 5(b).
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice The only permitted withdrawals from or application of funds on deposit in form acceptable the Trust Account shall be to Lender, to the Account Debtors: either (i) of Debtor’s grant of a security interest make prepayments on outstanding Loans in the Accounts to Lender; and accordance with Section 2(h) or other payments expressly provided for in this Agreement or (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTpurchase Assets.
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals The only permitted withdrawals from or application of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts funds on deposit in the same form as received by Debtor, each of which OC Ratio Posting Account shall be properly endorsed by Debtor to Lender, in accordance with recourseSection 6 hereof.
(f) Lender shall have With the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf prior written consent of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines the Administrative Agent (not to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s unreasonably withheld or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsdelayed), the sale or other disposition of which gives rise Collateral Manager may direct the Custodian and the Securities Intermediary to an Account; (ii) withdraw from the Collection Accounts and pay to the Person entitled thereto any actamounts credited thereto constituting Excluded Amounts if the Collateral Manager has, omissionprior to such withdrawal and consent, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to the Administrative Agent, the Securities Intermediary, the Borrower and each Lender a report setting forth the calculation of such Excluded Amounts in form and substance reasonably satisfactory to the Administrative Agent and each Lender.
Appears in 2 contracts
Sources: Credit Agreement (Steele Creek Capital Corp), Credit Agreement (Steele Creek Capital Corp)
Accounts. With respect No Borrower will, or will permit any Restricted Subsidiary party to the AccountsSecurity Agreement to instruct any Obligor to remit any Collections to any Person, and without limiting Lender’s rights above:
(a) Lender may direct any account or all lock-box other than a Lock-Box Bank, a Lock-Box Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the AccountsLock-Box; provided, however, that Lender a Borrower that is the Obligor on another Borrower’s Receivable may make payments of Collections on such Receivable to a Deposit Account of such other Borrower so long as there has been no incremental borrowing on a net basis as a result of such remittance. No Borrower will, or will permit any such Restricted Subsidiary to permit funds other than Collections of Receivables to be deposited into any Lock-Box, Lock-Box Account or (except as permitted by Section 4.5(c)) the Master Collection Account. At any time, if funds other than Collections are deposited into any such Lock-Box, Lock-Box Account or (except as permitted by Section 4.5(c)) the Master Collection Account, such Borrower shall promptly identify such funds for segregation therefrom, and after providing the Collateral Agent with reasonable evidence of the rightful ownership of such funds, shall instruct the Collateral Agent to transfer such funds to such rightful owners. No Borrower will, or will permit any such Restricted Subsidiary to, commingle Collections or other funds to which Collateral Agent is entitled hereunder with any other funds. The Borrower shall instruct each Lock-Box Bank to transfer all Collections at the end of each Business Day to the Master Collection Account. No Borrower will, or will permit, any such Restricted Subsidiary to add any Lock-Box Bank, any Lock-Box, or any Lock-Box Account to those listed on Exhibit 1.1(b) unless Administrative Agent and Collateral Agent shall have consented thereto (which consent shall not be obligated unreasonably withheld) and received an executed and acknowledged copy of a Lock-Box Letter substantially in any manner the form of Exhibit 1.1(c) (with such changes as are acceptable to make any demand or Administrative Agent and Collateral Agent) to make any inquiry as to the nature or sufficiency of any payment received by iteach new Lock-Box Bank with respect thereto. No Borrower will, or to present will permit any such Restricted Subsidiary to, terminate any Lock-Box Bank or file Lock-Box or close any claim Lock-Box Account or take any action to collect or enforce the payment of any or all of the Accounts.
Lock-Box unless Collateral Agent shall have received at least thirty (d30) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give days prior notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement termination or such shorter period as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourseCollateral Agent may agree to.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Huntsman LLC), Revolving Credit Agreement (Huntsman Petrochemical Finance Co)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any or Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete records of its Accounts, including records of all Account Debtors to make payment directly to Lender or to a specified agent of Lenderpayments received and all credits granted on such Accounts, all merchandise returned and all other dealings therewith.
(b) Lender may demandUpon the occurrence of an Event of Default that is continuing, collecteach Grantor hereby covenants and agrees that, receive at the request of the Security Agent, it shall ▇▇▇▇ conspicuously, in form and give receipts for any and manner reasonably satisfactory to the Security Agent, all money Chattel Paper, Instruments and other property items evidencing Accounts (other than any delivered to the Security Agent as provided herein) with an appropriate reference to the fact that such Accounts have been collaterally assigned to the Security Agent for the benefit of the Secured Parties and that the Security Agent has a Security Interest therein.
(c) The Security Agent shall have the right at any time following the occurrence of an Event of Default that is continuing to notify, or require any Grantor to notify, any Account Debtor of the Security Agent’s Security Interest in the Accounts and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in connection such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Security Agent notifies a Grantor that it has elected to collect the Accounts in accordance with the preceding sentence, any payments of Accounts received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in the Deposit Account, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts, any Supporting Obligation or Collateral Support shall be received in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate trust for the purpose of collecting any or all benefit of the Accounts; provided, however, that Lender Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not be obligated in any manner to make any demand adjust, settle or to make any inquiry as to compromise the nature amount or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any Accounts, or all release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon without the prior written consent of the AccountsSecurity Agent.
(d) DebtorWith respect to any Accounts constituting Collateral in excess of $5,000,000 that is evidenced by, at Lender’s requestor constitutes, shallChattel Paper, and Lender, at Lender’s option may, give notice in form acceptable each Grantor shall cause each originally executed copy thereof to Lender, be delivered to the Account DebtorsSecurity Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) of Debtor’s grant of a security interest with respect to any such Accounts in existence on the Accounts date hereof, on or prior to Lender; the date hereof and (ii) with respect to any such Accounts hereafter arising, immediately, and in any event within ten days of such additional information and instructions concerning Lender’s Grantor acquiring rights under this Security Agreement as Lender therein. With respect to any Accounts constituting Collateral in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals excess of all Accounts Receivable Documentation together with the originals of all instruments, $1,000,000 that constitutes “electronic chattel paper” under Article 9 of the UCC, security agreements, guaranties, and other documents and property evidencing or securing each Grantor shall take all steps necessary to give the Security Agent “control” (as defined in Section 9-105 of the UCC) over such Accounts (x) with respect to any such Accounts in existence on the same form as received by Debtordate hereof, each of which shall be properly endorsed by Debtor on or prior to Lender, the date hereof and (y) with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating respect to any or all such Accounts hereafter arising, within 30 days of the Collateral, including the Accountssuch Grantor acquiring rights therein.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 2 contracts
Sources: Security Agreement (Sunpower Corp), Revolving Credit Agreement (Sunpower Corp)
Accounts. With respect 24.1 The Trustee, at the request of the Management Company, shall open Bank Accounts titled CDC-Trustee First Habib Stock Fund for the Unit Trust at such Branches of Banks and at such locations (including outside Pakistan, subject to applicable Regulations and after obtaining necessary written prior approvals from the relevant regulatory authority in Pakistan) as may be requested by the Management Company from time to time. Such accounts may be used for collection, Investment, redemption or any other use of the Trust.
24.2 The Management Company may also require the Trustee to open a separate Bank Account for each dividend distribution out of the Unit Trust. Notwithstanding anything in this Deed, the beneficial ownership of the balances in these accounts shall vest in the Unit Holder(s).
24.3 All Bank charges for opening and maintaining Bank Accounts for the Trust shall be charged to the Fund.
24.4 All interest, income, mark up, profit etc. earned in the Distribution Account(s), including those accruing on unclaimed dividends, shall form part of the Trust Property for the benefit of the Unit Holder(s) and shall be transferred periodically from the Distribution Account(s) to the main Bank Account of the Trust.
24.5 The amounts received from the Core Investors (seed capital) and private placement investors shall be deposited in a separate Bank Account and transferred to the main Bank Account of the Fund upon the start of the Initial Offer Period. Income, profit etc. earned on Investments by Core Investors and Pre IPO investors up to and including the day before the opening of Initial Public Offering, shall be paid on receipt of such income / profit, to the Core and Pre IPO investors and shall not form part of the Trust Property.
24.6 The Trustee shall, if requested by the Management Company open off shore Bank Accounts titled CDC Trustee-First Habib Stock Fund in offshore countries where the Investments are made on account of the Scheme, if such Investments necessitate opening and operation of Bank Accounts by the Trustee. For this purpose, the Trustee shall be deemed to be authorized to sign and submit the prescribed account opening forms of such Banks, including custodial/sub-custodial services accounts and Brokerage accounts with such Banks, Custodians, sub-Custodians, and Brokers, as may be required to be appointed for offshore Investments of the Scheme. The opening, operation and maintenance of such Bank Accounts, custodial/sub-custodial and without limiting Lender’s rights above:
(a) Lender may direct Brokerage services accounts in offshore countries shall always be subject to the approval of the State Bank of Pakistan and the exchange control Regulations, as well as any or all Account Debtors to make payment directly to Lender or to a specified agent directives of Lenderthe State Bank of Pakistan and/or the Commission.
(b) Lender may demand24.7 The Management Company shall exercise due caution and diligence in appointing and arranging of such Bank, collect, receive Brokerage houses and give receipts Custodian/ sub-Custodian in offshore countries. The Management Company and the Trustee shall not incur any personal liability for any consequences that may arise in the opening and operation of such Bank Accounts, Brokerage accounts and/or custodial/sub-custodial services accounts. The Management Company and the Trustee shall be indemnified out of the Trust Property for any losses, costs and expenses that may be suffered, sustained or incurred by the Management Company /Trustee and against all money consequences arising from and out of (1) the execution by the Management Company /Trustee of the account opening forms/ documents with all particulars as may be required by such Bank(s), Financial Institution(s), Custodian(s)/sub- Custodian(s) and Brokerage house(s), (2) the opening of such account(s) with the offshore Bank(s), Financial Institution(s), Custodian(s)/sub-Custodian(s) and Brokerage house(s), (3) the Investments made in offshore countries on account of the Scheme, (4) the appointment of Bank(s),Financial Institution(s), Broker(s) and/or Custodian(s)/sub-Custodian(s) for the Schemes’ Investments, securities and other property assets internationally and (5) all other related or incidental activities of the Management Company/Trustee in relation to the above. Provided that such indemnity shall not be available to the Management Company and/or the Trustee, if such loss, cost or expense is sustained or incurred due to willful or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for gross negligence on their respective part. For the purpose of collecting any or all making arrangements in offshore countries, the Management Company may in consultation with Trustee retain the services of advisors and professionals to ensure legal and regulatory compliances on part of the Accounts; providedManagement Company and the Trustee, however, that Lender shall not be obligated as provided in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all Clause 6.17 above.
24.8 The beneficial ownership of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest balances in the Accounts to Lender; Bank Account(s), except the Bank Account(s) mentioned in Clauses 24.4 and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts 24.5 above shall vest in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourseUnit Holder(s).
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 2 contracts
Sources: Trust Deed, Trust Deed
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Borrower shall procure that the deposits required by Clause 18.4 (FF&E Reserve) are made to the FF&E Account. The Borrower may direct any or all also make such other deposits in the FF&E Account Debtors from time to make payment directly to Lender or to a specified agent of Lendertime as it sees fit.
(b) Lender Subject to the Debenture, the Borrower may demandonly withdraw amounts from the FF&E Account for application in or towards capital expenditure (including expenditure required in relation to fixtures, collect, receive furnishings and give receipts equipment) for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s nameInitial Properties which are hotels.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all If a cash collateral account is established as contemplated by paragraph (b) of the Accounts; provideddefinition of Subordinated Loan Notes, however, that Lender shall not be obligated the Borrower may withdraw amounts from such accounts for application in any manner to make any demand or to make any inquiry as to making payments of principal under the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the AccountsSubordinated Loan Notes.
(d) DebtorThe Savoy Debenture Stock Reserve Account shall be under the sole control of the Security Trustee and no withdrawals may be made from it without the prior written consent of the Security Trustee except pursuant to paragraph (e) below. However, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, the Security Trustee may consent to the release of funds standing to the credit of the Savoy Debenture Stock Reserve Account Debtors: (and is hereby authorised by the Junior Finance Parties and the Obligors to do so) for application in payment to the trustee of the relevant Savoy Debenture Stock Trust Deed:
(i) under or in connection with an agreement with the relevant trustee for the redemption of Debtor’s grant any Savoy Debenture Stock or other release of a security interest any Savoy Debenture Stock Mortgage, in any case on terms approved by the Accounts to LenderJunior Lenders and the Arranger under Clause 17.26 (Savoy Debenture Stock); and or
(ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender upon any Savoy Debenture Stock becoming redeemable in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTaccordance with its terms.
(e) Debtor If at the time when the Target and/or The Savoy Theatre Limited become Subsidiary Guarantors in accordance with Clause 17.22 (Accession of the Target Group and Hive-down), any Savoy Debenture Stock is outstanding, the Borrower shall, promptly following Lender’s requestif the Arranger so requires, deliver ensure that the Target and/or The Savoy Theatre Limited open accounts (the "NEW SAVOY DEBENTURE STOCK RESERVE ACCOUNTS") charged to Lender the originals Security Trustee on the same basis as the Savoy Debenture Stock Reserve Account and transfer from the Savoy Debenture Stock Reserve Account in the name of all the Borrower to the new Savoy Debenture Stock Reserve Accounts Receivable Documentation such amount as the Arranger may require to ensure that the amount in each account reflects on a rateable basis the principal amount outstanding under each issue of Savoy Debenture Stock together with a rateable allowance for interest which may accrue before the originals of all instruments, chattel paper, Final Maturity Date. The Target and The Savoy Theatre Limited shall take such steps to perfect the Security Trustee's security agreements, guaranties, and other documents and property evidencing or securing over the new Savoy Debenture Stock Reserve Accounts as the Security Trustee may require consistently with the corresponding steps taken in the same form as received by Debtor, each of which shall be properly endorsed by Debtor relation to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to LenderSavoy Debenture Stock Reserve Account.
Appears in 1 contract
Sources: Junior Mortgage Loan Facility (Wilshire Real Estate Investment Trust Inc)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Each Option Care Person hereby represents and warrants to the Lender and covenants with the Lender that: (i) each existing Account represents, and each future Account shall represent, a BONA FIDE sale or lease and delivery of goods by an Option Care Person, or rendition of services by an Option Care Person, in the ordinary course of business of an Option Care Person; (ii) each existing Account is, and each future Account shall be, at the time any such Account arose and at the time any such Account is billed, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Lender, without offset, deduction, defense, or counterclaim, other than discounts required by law or contract, and corrections of billing errors, in the ordinary course of business of an Option Care Person; (iii) no payment shall be received with respect to any Account, and no credit, discount, extension, or agreement therefor shall be granted on any Account, except as reported to the Lender in accordance with this Agreement; (iv) each copy of an invoice or claim form delivered to the Lender by an Option Care Person shall be a genuine copy of the original invoice or claim form sent to the Account Debtor named therein; (v) all goods described in any invoice or claim form representing a sale of goods shall have been delivered to the applicable patient and all services of any Option Care Person described in any invoice or claim form shall have been performed; (vi) each of the Accounts and the related contracts is in full force and effect and represents and constitutes a legal, valid and binding obligation of the related Account Debtor, enforceable against such Account Debtor in accordance with its terms; (vii) promptly following notice from an Account Debtor as to an earlier overpayment by such Account Debtor to any Option Care Person, such Option Care Person has made all payments to such Account Debtor which are necessary to prevent such Account Debtor from offsetting such overpayment against any amount which such Account Debtor owes on the Accounts (however, Lender acknowledges that notwithstanding said payments, offsets may direct and do nonetheless occur); (viii) no direction of any Option Care Person or all any other Person is in effect directing Account Debtors (A) to make payment directly to Lender or remit payments in respect of the Accounts other than to a specified agent Lockbox or a Blocked Account or (B) to remit EOBs in respect of Lenderthe Accounts to any Person or address other than to an Option Care Person at its chief executive office; and (ix) during the one year prior to the Closing Date, no Option Care Person has been subject to any Government Offset involving in excess of fifty thousand dollars ($50,000). As of the date of each Borrowing, each Option Care Person is unaware of any potential Government Offset involving in excess of fifty thousand dollars ($50,000) for any single Governmental Offset and in excess of two hundred thousand dollars ($200,000) for all such Government Offsets that has not been disclosed by such Option Care Person to the Lender in writing prior to that date. All of the Medicaid and Medicare reports required to be filed by any Option Care Person for all reporting periods have been filed with the applicable Government Account Debtor, or HCFA designated agents or agents of such Government Account Debtor. At all times on and after the thirtieth day following the Closing Date, each Option Care Person hereby represents and warrants to the Lender that Account Debtor Notices, signed by the Borrowers, have been delivered to all of the Account Debtors of the type referred to in clause (p) of the definition of Eligible Account.
(b) No Option Care Person shall re-date any invoice, claim form or sale or make sales on extended dating or extend or modify any Account (other than to correct billing errors in the ordinary course of business). The Lender acknowledges that if an Account Debtor which is the "primary" payor does not pay a claim in full or denies such claim, an Option Care Person may demand, collect, receive and give receipts for send a separate invoice to an Account Debtor which is a "secondary" payor. If any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency Option Care Person becomes aware of any payment received by itmatter that is reasonably likely to materially adversely affect any Account Debtor (other than a Self-Pay Account Debtor), or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to including information regarding the Account Debtors: (i) of Debtor’s grant of a security interest in 's creditworthiness, such Option Care Person shall promptly so advise the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Debtors’ records concerning all Accounts are and will be kept solely in the State of New York and at the Debtors’ chief place of business specified on the signature page below. The Debtors will not remove any of such records from such address without the prior written consent of the Collateral Agent, which shall not be unreasonably withheld. Without in any way excusing a breach by the Debtors of the foregoing sentence, if for any reason any of such records concerning the Accounts shall at any time be moved to another location or locations, the Debtors will promptly notify the Collateral Agent of any such change in the location of such records and will execute and deliver such financing statements and do such other acts and things as the Collateral Agent may direct any or all Account Debtors request pursuant to make payment directly to Lender or to a specified agent of LenderSection 10 hereof.
(b) Lender may demandEach item of Accounts is, collector at such time as it becomes part of the Collateral will be, receive a bona fide, valid and give receipts for any legally enforceable obligation of the account debtor or other obligor in respect thereof, subject to no defense known to the Debtors, set-off or counterclaim against the Debtors and all money and other property due or to become due in connection with which there is no default with respect to any payment or performance on the Accounts, in Lender’s part of the Debtors or Debtor’s nameany other party.
(c) Lender may file The Debtors will at all times keep accurate and complete records of payment and performance by the Debtors, the respective account debtors and all other parties obligated on the Accounts.
(d) The Debtors will immediately inform the Collateral Agent of any claim default in payment or performance by the Debtors or any account debtor or other parties obligated on, and take of claims made by others in regard to, the Accounts and shall not change the terms thereof (or terminate or permit the impairment of any other action in any court of law or equity its rights thereunder) without the prior written consent of the Collateral Agent, which Lender determines shall not be unreasonably withheld. The Debtors will make all payments and perform all undertakings on the Debtors’ part to be appropriate for paid or performed with respect to Accounts when due. The Debtors hereby authorize the purpose of collecting Secured Parties to cure any default in payment or all of performance by the Debtors with respect to the Accounts; provided, however, that Lender the Secured Parties shall be under no obligation to do so, and provided further, that the Secured Parties’ curing of any default shall not be obligated in constitute a waiver by the Secured Parties of any manner default under this Agreement. The Debtors agrees to make reimburse the Secured Parties on demand with interest at the Maximum Rate for any demand payment made or to make any inquiry as expense incurred by the Secured Parties pursuant to the nature or sufficiency of foregoing authorization, and any payment received made or expense incurred by it, or the Secured Parties pursuant to present or file any claim or take any action to collect or enforce the payment of any or all foregoing authorization shall be part of the AccountsObligations secured hereunder.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor If there shall occur and be continuing an event of default in respect of the Obligations, the Debtors shall, promptly following Lender’s requestupon request of the Collateral Agent, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each name of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Secured Parties or the Debtors, upon such terms as Lenderat any time notify the account debtor or other obligor on any item of the Accounts, of the Secured Parties’ security interest. The Collateral Agent may, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by its own name or the UCC and except for any name of the following arising from Lender’s Secured Parties or Debtors, at any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following time after the occurrence and during the continuance continuation of an Event of DefaultDefault (as defined below), Debtor: (i) shall immediately pay demand, ▇▇▇ for, collect or deliver such payment receive any money or property payable or receivable on any Accounts and settle, release, compromise, adjust, ▇▇▇ upon, foreclose, realize upon or otherwise enforce any item of Accounts as the Collateral Agent may determine, and for the purpose of realizing the Secured Parties’ rights herein, the Collateral Agent may receive, open and dispose of mail addressed to Lender in the original form in which received by Debtor; (ii) shall Debtors and endorse to Lendernotes, with recourse, all checks, drafts, money orders, notesdocuments of title or other forms of payment on behalf of and in the name of the Debtors. The Debtors agrees to reimburse the Collateral Agent on demand with interest at the Default Rate for any payment made or any expense incurred by the Collateral Agent pursuant to the foregoing authorization, and other instruments any payment made or documents representing such payment; (iii) expense incurred by the Collateral Agent pursuant to the foregoing authorization shall not commingle such payment with any be part of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderthe obligations secured hereunder.
Appears in 1 contract
Accounts. With respect to the Accounts(i) Depomed and Newco shall, and without limiting Lender’s rights above:
Collegium shall cause Newco to, establish and maintain with a Financial Institution reasonably satisfactory to Depomed, in the name of Depomed and Newco a sales account (a) Lender may direct the “Sales Account”). Such account and any or all Account Debtors amounts deposited therein shall be pledged in favor of Depomed to make secure the payment directly obligations of Newco and Collegium owed to Lender or Depomed pursuant to Section 7.3, and shall be subject to a specified agent first priority Lien and “control” (as defined in the applicable Uniform Commercial Code) pursuant to a deposit account control agreement or securities account control agreement in form and substance reasonably acceptable to Depomed (the “Control Agreement”). The Control Agreement shall be entered into by Depomed, Newco and the applicable Financial Institution as of Lenderthe Closing Date.
(bii) Lender Newco shall, and Collegium shall cause Newco to, cause all amounts from gross sales of the Payment-Bearing Products to be deposited directly into the Sales Account (including, requiring all Customers of the Payment-Bearing Products to remit all payments owed to Collegium or any of its Affiliates or any other Sublicensees directly into the Sales Account) and, on a daily basis, thirty-five percent (35%) of such day’s deposits (the “Newco Deposits”) shall be swept into an account designated by Depomed until the Minimum Quarterly Payment obligation is satisfied for each calendar quarter, and sixty-five percent (65%) shall be swept into an account designated by Newco. Once the Minimum Quarterly Payment obligation is satisfied for a given calendar quarter, then one hundred percent (100%) of the Newco Deposits shall be swept into an account designated by Newco. The sweep mechanism shall not be subject to change and shall be the only mechanism for disbursing funds from the Sales Account, unless in a writing signed by both Depomed and Newco; provided that upon an “Event of Default” (as defined in the Collateral Agreement), Depomed may demandexercise all remedies granted under the Collateral Agreement. Based on Newco’s reports provided to Depomed calculating amounts payable under Section 7.3, collect, receive and give receipts for Depomed shall refund to Newco any and all money and other property due or amounts overpaid to become due in connection with Newco from the Accounts, in Lender’s or Debtor’s nameNewco Deposits within ten (10) Business Days of receiving such reports.
(ciii) Lender Newco shall, and Collegium shall cause Newco to, pay all fees, expenses and charges of the Financial Institution at which the Sales Account is maintained. Neither Newco nor Collegium shall have any right to terminate the Financial Institution at which the Sales Account is maintained without Depomed’s prior written consent. Any such consent, which Depomed may file any claim grant or withhold in its sole and take any other action in any court absolute discretion, shall be subject to the satisfaction of law or equity which Lender determines each of the following conditions to the satisfaction of Depomed: (A) the successor Financial Institution shall be appropriate for the purpose of collecting any or acceptable to Depomed; (B) Depomed shall have received evidence that all of the Accounts; provided, however, that Lender shall not be obligated applicable parties making payments in any manner respect of sales of the Payment-Bearing Product have been instructed to make any demand or to make any inquiry as remit all future payments in respect of sales of the Payment-Bearing Product to the nature or sufficiency of any payment new accounts held at the successor Financial Institution; and (C) Depomed shall have received by it, or evidence to present or file any claim or take any action its satisfaction necessary to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lendersecure Depomed’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Sales Account, including any act or omission which results in the loss or impairment execution and delivery of the Debtor’s Account, including any act or omission which results Control Agreement in favor of Depomed in form and substance satisfactory to Depomed. Certain information in this document has been omitted and filed separately with the loss or impairment of Securities and Exchange Commission. Confidential treatment has been requested with respect to the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsomitted portions marked [***].
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Commercialization Agreement (Collegium Pharmaceutical, Inc)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any Prior to the Closing Date there shall have been established a deposit account pursuant to which (i) the E-Loan Servicer shall deposit collections on the E-Loan Receivables, as more specifically described in the E-Loan Servicing Agreement, (ii) the Ford Credit Servicer shall deposit collections on the Ford Credit Receivables, as more specifically described in the Ford Credit Servicing Agreements, (iii) the Onyx Servicer shall deposit collections on the Onyx Receivables, as more specifically described in the Onyx Servicing Agreement, and (iv) the Capital One Servicer shall deposit collections on the Capital One Receivables, as more specifically described in the Capital One Servicing Agreement. The foregoing deposit account was established and shall initially be maintained with the Depository Institution. On or all prior to each Payment Date, the Master Servicer shall instruct the Depository Institution to withdraw from such deposit account for deposit into the Collection Account Debtors the Available Collections for the related Collection Period. All monies owned by the Trust deposited from time to make time in the foregoing deposit account shall be held by the Depository Institution for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lender.
(b) Lender may demand, collect, receive the Issuer and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all as part of the AccountsTrust Property; provided, however, that Lender all monies owned by third parties deposited from time to time in the foregoing deposit account shall not be obligated in any manner so held and shall not be available for deposit into the Collection Account and shall not be available to make any demand payments in respect of the Notes or the Certificates.
(b) The Master Servicer shall, prior to the Closing Date, cause to be established and maintained an Eligible Deposit Account in the name "U.S. Bank National Association, on behalf of HSBC Bank USA, National Association as Indenture Trustee and as secured party with respect to Merrill Auto Trust Securitization ▇▇▇▇-▇", initially at the corporate trust department of the Securities Administrator, which shall be designated as the "Collection Account". The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided, that the Master Servicer and/or relevant Depository Institution may make any inquiry deposits to, and the Indenture Trustee and the Securities Administrator may (following written instruction of the Master Servicer) make withdrawals from, the Collection Account in accordance with the terms of the Basic Documents. In addition, the Collection Account shall be established and maintained at an institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account shall be held by the Securities Administrator on behalf of the Indenture Trustee as secured party for the benefit of the Noteholders and, after payment in full of the Notes, as agent of the Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account shall be made only upon the terms and conditions of the Basic Documents. All amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Master Servicer, by the depository institution or trust company then maintaining the Collection Account in specified Permitted Investments that mature not later than the Business Day immediately prior to the Payment Date (or if the Rating Agency Condition is satisfied, not later than such Payment Date) for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. Neither the Indenture Trustee nor the Securities Administrator shall be liable for investment losses in Permitted Investments made in accordance with directions from the Master Servicer. In the event that the Collection Account is no longer to be maintained at the corporate trust department of the Securities Administrator, the Master Servicer shall, with the Indenture Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit Account to be established as the Collection Account within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent). The Master Servicer shall not be required to invest amounts representing Available Collections for a Payment Date that are deposited into the nature Collection Account on or sufficiency of any payment received by itafter the Business Day immediately preceding the related Payment Date.
(c) The Master Servicer shall, or prior to present or file any claim or take any action to collect or enforce the payment of any or all of Closing Date, establish and maintain an administrative subaccount within the AccountsCollection Account, which subaccount shall be designated as the "Principal Distribution Account". The Principal Distribution Account is established and maintained solely for administrative purposes.
(d) Debtor, at Lender’s request, The Master Servicer shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, prior to the Closing Date, cause an Eligible Deposit Account Debtors: (i) of Debtor’s grant of a security interest to be established and maintained, in the Accounts to Lender; and (ii) name "Merrill Auto Trust Securitization ▇▇▇▇-▇ Certificate Distribution Account", initially at the corporate trust department of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallthe Securities Administrator, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed designated as the "Certificate Distribution Account". The Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Distribution Account pursuant to this Agreement and the Indenture shall be held by Debtor to Lender, with recourse.
(f) Lender the Owner Trustee as part of the Trust Property and shall have be applied as provided in the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Basic Documents. In the event that the Certificate Distribution Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines is no longer to be appropriate.
(g) Except as otherwise provided by maintained at the UCC and except for any corporate trust department of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsSecurities Administrator, the sale Master Servicer shall cause an Eligible Deposit Account to be established as the Certificate Distribution Account within ten (10) Business Days (or other disposition of such longer period not to exceed thirty (30) calendar days as to which gives rise to an Account; (iieach Rating Agency may consent) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment and shall give written notice of the Debtor’s Account, including any act or omission which results in location and account number of such account to the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsOwner Trustee.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Merrill Auto Trust Securitization 2005-1)
Accounts. With respect No Borrower will, or will permit any Restricted Subsidiary party to the AccountsSecurity Agreement to instruct any Obligor to remit any Collections to any Person, account or lock-box other than a Lock-Box Bank, a Lock-Box Account or a Lock-Box; PROVIDED, HOWEVER, that a Borrower that is the Obligor on another Borrower's Receivable may make payments of Collections on such Receivable to a Deposit Account of such other Borrower so long as there has been no incremental borrowing on a net basis as a result of such remittance. No Borrower will, or will permit any such Restricted Subsidiary to permit funds other than Collections of Receivables to be deposited into any Lock-Box, Lock-Box Account or (except as permitted by SECTION 4.5(c)) the Master Collection Account. At any time, if funds other than Collections are deposited into any such Lock-Box, Lock-Box Account or (except as permitted by SECTION 4.5(c)) the Master Collection Account, such Borrower shall promptly identify such funds for segregation therefrom, and without limiting Lender’s rights above:
(a) Lender may direct after providing the Collateral Agent with reasonable evidence of the rightful ownership of such funds, shall instruct the Collateral Agent to transfer such funds to such rightful owners. No Borrower will, or will permit any such Restricted Subsidiary to, commingle Collections or all Account Debtors other funds to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection which Collateral Agent is entitled hereunder with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in funds. The Borrower shall instruct each Lock-Box Bank to transfer all Collections at the end of each Business Day to the Master Collection Account. No Borrower will, or will permit, any court of law such Restricted Subsidiary to add any Lock-Box Bank, any Lock-Box, or equity any Lock-Box Account to those listed on EXHIBIT 1.1(b) unless Administrative Agent and Collateral Agent shall have consented thereto (which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender consent shall not be obligated unreasonably withheld) and received an executed and acknowledged copy of a Lock-Box Letter substantially in any manner the form of EXHIBIT 1.1(c) (with such changes as are acceptable to make any demand or Administrative Agent and Collateral Agent) to make any inquiry as to the nature or sufficiency of any payment received by iteach new Lock-Box Bank with respect thereto. No Borrower will, or to present will permit any such Restricted Subsidiary to, terminate any Lock-Box Bank or file Lock-Box or close any claim Lock-Box 113 Account or take any action to collect or enforce the payment of any or all of the Accounts.
Lock-Box unless Collateral Agent shall have received at least thirty (d30) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give days prior notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement termination or such shorter period as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourseCollateral Agent may agree to.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Huntsman Polymers Corp)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct Maintain all of such Borrower’s and any of its Subsidiaries’ operating accounts and depository accounts with Bank or all Account Debtors to make payment directly to Lender or to a specified agent Bank’s Affiliates, with the exception of Lenderthe Offshore Accounts.
(b) Lender may demandIn addition to the foregoing, collectBorrowers and any Domestic Subsidiary of any Borrower shall obtain any domestic business credit card, receive letter of credit and cash management services exclusively from Bank so long as Bank offers on materially comparable terms, conditions and pricing offered by any provider other than Bank. Lead Borrower shall give receipts Bank written notice of any proposal from any provider for any domestic business credit card, letter of credit or cash management services with respect to any Borrower or any of their Domestic Subsidiaries, which notice shall (i) identify the provider offering such domestic business credit card, letter of credit or cash management services and all money summarize the terms, conditions and pricing thereof, and (ii) be delivered on the terms set forth in Section 10 hereof (such notice described in (i) and (ii), the “Bank Services Notice”). Upon receipt of such Bank Services Notice, Bank shall have the right (but not the obligation) within ten (10) Business Days to agree to provide such domestic business credit card, letter of credit or cash management services to any Borrower or any of its Domestic Subsidiaries on materially comparable terms, or, other property due terms that Bank may propose and any Borrower or to become due in connection with the Accountsany of its Domestic Subsidiaries may agree to, in Lendertheir sole discretion. If Bank agrees to provide such domestic business credit card, letter of credit and cash management services as set forth in the immediately preceding sentence, the applicable Borrower or Domestic Subsidiary shall be required to enter into such domestic business credit card, letter of credit or cash management services with Bank and not the other provider.
(a) For each rolling three (3) Business Day period, maintain in operating or deposit accounts with Bank of Bank’s or DebtorAffiliates at least (i) thirty percent (30%) when no Advances are outstanding and (ii) fifty (50%) when Advances are outstanding, of the average Dollar Equivalent for such period of all of Borrower’s nameand its Subsidiaries’ cash on deposit across all financial institutions except cash held in Offshore Accounts.
(b) [Reserved].
(c) Lender In addition to and without limiting the restrictions in (a), each Borrower shall provide Bank a written notice before establishing any Collateral Account at or with any bank or financial institution other than Bank or Bank’s Affiliates. Subject to Section 5.18, for each Collateral Account that any Borrower at any time maintains (other than Offshore Accounts), such Borrower shall cause the applicable bank or financial institution (other than Bank) at or with which any Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Bank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may file any claim and take any other action in any court not be terminated without the prior written consent of law or equity which Lender determines to be appropriate for the purpose of collecting any or all Bank. The provisions of the Accounts; provided, however, that Lender previous sentencethis Section 5.9(c) shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: apply (i) to Collateral Accounts exclusively used for payroll, payroll taxes, and other employee wage and benefit payments to or for the benefit of Debtor’s grant of a security interest in the Accounts Borrowers’ employees and identified to Lender; and Bank by Lead Borrower as such, or (ii) to Collateral Accounts with an average monthly balance not in excess of $500,000 for each such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary deposit account or appropriate. GENERAL SECURITY AGREEMENT
$2,5005,000,000 for all such Collateral Accounts (e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodscollectively, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the “Excluded Accounts”).
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. (a) The Servicer shall establish and maintain the Collection Account and the Certificate Account in the name of the Trustee for the benefit of the Certificateholders and, to the extent herein provided, for the benefit of the Surety Bond Issuer. The Collection Account shall be a segregated, non-interest-bearing trust account initially established with the Trustee and maintained with the Trustee so long as (i) the deposits of the Trustee have the Required Deposit Rating or (ii) the Collection Account is maintained as a fully segregated trust account. All amounts held in the Collection Account (other than Purchase Amounts) shall be invested in Permitted Investments by the Trustee, at the written direction of the Servicer, in each case such investments maturing not later than the Deposit Date following the Collection Period in which such amounts are so invested. Purchase Amounts deposited on a Deposit Date shall not be invested. Such written direction shall certify that any such investment is authorized by this Section 14.1 and complies with the requirements of Permitted Investments as set forth in Schedule C. The Certificate Account shall be a segregated, non-interest-bearing trust account initially established with the Trustee and maintained with the Trustee for so long as (x) the deposits of the Trustee have the Required Deposit Rating or (y) the Certificate Account is maintained as a fully segregated trust account. The amounts in the Certificate Account shall not be invested. Should the deposits of the Trustee no longer have the Required Deposit Rating and the Collection Account or the Certificate Account, as applicable, shall not be maintained as a fully segregated trust account, then the Servicer shall, with the Trustee's assistance as necessary, cause the Certificate Account and/or the Collection Account to be moved, within 60 days after the occurrence of the later of the loss of the Required Deposit Rating or the cessation of such accounts being maintained as fully segregated trust accounts, to a bank or trust company organized under the laws of the United States of any state thereof, the deposits of which shall have the Required Deposit Rating.
(i) The Depositor shall establish the Reserve Account in the name of the Collateral Agent for the benefit of the Certificateholders and the Surety Bond Issuer and shall clearly indicate that such account has been pledged to the Collateral Agent for the benefit of the Certificateholders and the Surety Bond Issuer. The Reserve Account shall be a segregated, non-interest-bearing trust account initially established and maintained with the Trustee for so long as (x) the deposits of the Trustee have the Required Deposit Rating or (y) the Reserve Account is maintained as a fully segregated trust account. The Reserve Account shall not be property of the Trust. All amounts held in the Reserve Account shall be invested in Permitted Investments by the Collateral Agent, at the written direction of the Depositor, in each case such investments maturing not later than the Deposit Date following the Collection Period in which such amounts are so invested. Such written direction shall certify that any such investment is authorized by this Section 14.1 and comply with the requirements of Permitted Investments as set forth in Schedule C. Should the deposits of the Collateral Agent no longer have the Required Deposit Rating and the Reserve Account shall not be maintained as a fully segregated trust account, then the Depositor shall, with the Collateral Agent's assistance as necessary, cause the Reserve Account to be moved, within 60 days after the occurrence of the later of the loss of the Required Deposit Rating or the cessation of such accounts being maintained as fully segregated trust accounts, to a bank or trust company organized under the laws of the United States or any state thereof, the deposits of which shall have the Required Deposit Rating.
(ii) On the date of the issuance of the Certificates, the Depositor shall deposit the Reserve Account Initial Deposit into the Reserve Account. The Depositor hereby grants to the Collateral Agent for the benefit of the Certificateholders and the Surety Bond Issuer a security interest in and to the Reserve Account and any and all Account Property credited thereto from time to time, including, but not limited to, Permitted Investments, to secure payment of the Certificates according to their terms. Amounts held from time to time in the Reserve Account will continue to be held by the Collateral Agent for the benefit of the Certificateholders and the Surety Bond Issuer, but the Reserve Account shall not be an asset of the Trust. Funds held in the Reserve Account shall be remitted to the Depositor upon the Depositor's written request upon the termination of the Trust. By acceptance of their Certificates or interest therein and by execution and delivery of the Reimbursement Agreement by the Surety Bond Issuer, the Certificateholders and Certificate Owners and the Surety Bond Issuer, respectively, shall be deemed to have appointed Bankers Trust Company as Collateral Agent. Bankers Trust Company hereby accepts such appointment as Collateral Agent.
(iii) With respect to the AccountsAccount Property in respect of the Reserve Account, the Collateral Agent agrees that:
A. any Account Property that is held in deposit accounts shall be held solely in a bank with the Required Deposit Rating; and each such bank with the Required Deposit Rating shall be subject to the exclusive custody and control of the Collateral Agent, and without limiting Lender’s rights above:the Collateral Agent shall have sole signature authority with respect thereto;
B. any Account Property that constitutes Physical Property shall be delivered to the Collateral Agent in accordance with paragraph (a) Lender may direct of the definition of "Delivery" and shall be held, pending maturity or disposition, solely by the Collateral Agent, or a financial intermediary (as such term is defined in Section 8-313(4) of the Relevant UCC) acting solely for the benefit of the Certificateholders;
C. any Account Property that is a book-entry security held through the Federal Reserve System pursuant to Federal book-entry regulations shall be delivered to the Collateral Agent in accordance with paragraph (b) of the definition of "Delivery" and shall be maintained by the Collateral Agent, pending maturity or all disposition, through continued book-entry registration of such Account Debtors Property as described in such paragraph; and
D. any Account Property that is an "uncertificated security" under Article 8 of the Relevant UCC and that is not governed by clause (C) above shall be delivered to make payment directly the Collateral Agent in accordance with paragraph (c) of the definition of "Delivery" and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent's (or its nominee's) ownership of such security. Effective upon Delivery of any Account Property in the form of Physical Property, book-entry securities or uncertificated securities, the Collateral Agent shall be deemed to Lender or to a specified agent have purchased such Account Property for value, in good faith and without notice of Lenderany adverse claim thereto.
(biv) Lender The Depositor and the Servicer agree to take or cause to be taken such further actions, to execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments (including, without limitation, any financing statements under the Relevant UCC or this Agreement) as may demand, collect, receive and give receipts for any and all money and other property due or be determined to become due in connection with the Accountsbe necessary, in Lender’s or Debtor’s nameorder to perfect the interests created by this Section 14.1(b) and otherwise effectuate the purposes, terms and conditions of this Section 14.1(b).
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Nationscredit Securitization Corp)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any The Trustee shall establish and maintain separately with respect to each Trust the Collection Account, the Funding Account, if any, and the Certificate Account in the name of the Trustee for the benefit of the Certificateholders. The Collection Account, the Funding Account and the Certificate Account shall be segregated trust accounts established with the trust department of the Trustee. The Servicer shall establish the Lock-Box Account pursuant to the Servicing Agreement. The Lock-Box Account shall be a non-interest bearing account established with a Lock-Box Account Depository, which shall at all times be an Eligible Institution, by the Servicer for the sole benefit of the Trust and other holders of retail installment sales contracts originated by Aegis Finance or all Account Debtors to make payment directly to Lender or to a specified agent its Affiliates. All of Lenderthe foregoing Accounts shall be Eligible Accounts.
(b) Lender may demandAmounts held in the Collection Account, collectthe Certificate Account and the Funding Account shall be invested by the Trustee, receive upon the written direction of the Seller, in Eligible Investments. Any such investment in the Certificate Account or the Funding Account shall mature no later than (i) one Business Day before the Distribution Date (or Funding Date with respect to the Funding Account), next succeeding the date of investment or, (ii) in the case of money market fund investments, on such Distribution Date. Any such investment in the Collection Account shall mature not later than two Business Days before such Distribution Date. Any written investment direction by the Seller shall certify that any such investment is authorized by this Section 5.01. The Trustee shall have no authority to sell or otherwise dispose of Eligible Investments attributable to funds held in the Certificate Account, the Collection Account or the Funding Account prior to their respective maturity dates. Interest and give receipts earnings on investments of funds in any Account shall be credited to and all losses borne by the Account with respect to which they were derived. All accounts with the Trustee must be trust accounts subject to regulations substantially similar to 12 C.F.R. 9.10(b). The Trustee shall not have any responsibility or liability for any and all money and other property due investment of moneys at the direction of the Seller or to become due in connection with the Accounts, in Lender’s or Debtor’s nameany loss resulting therefrom.
(c) Lender may file any claim The Servicer has appointed each of Wells Fargo Bank, N.A., and take any other action in any court of law or equity which Lender determines to be appropriate for Commerce Bank, as an initial Lock-Box Account Depos▇▇▇▇▇ under the purpose of collecting any or all Servicing Agreement. All funds of the Accounts; provided, however, that Lender Trust held by a Lock-Box Account Depository are and shall not be obligated in any manner to make any demand or to make any inquiry as to remain the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all property of the AccountsTrust.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Master Trust Agreement (Aegis Consumer Funding Group Inc)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Territory, to the extent that it directly or indirectly owned any Acquired Assets or Restricted Assets (other than through its ownership of Sub) prior to the Closing, hereby irrevocably constitutes and appoints, effective as of the Closing, each of Sub and LuxCo and assigns it as true and lawful attorney of the Territory and its Subsidiaries with full power of substitution (i) to collect in a reasonable manner consistent with reasonable past practice for the account of Sub or LuxCo any Acquired Assets and Restricted Assets and (ii) to institute and prosecute all proceedings which Sub, LuxCo and their respective Subsidiaries may direct in their sole discretion deem proper in order to enforce any right, title or interest in, to or under the Acquired Assets and Restricted Assets, and to defend or compromise any and all Account Debtors to make payment directly to Lender actions, suits or to a specified agent proceedings in respect of Lenderthe Acquired Assets and Restricted Assets.
(b) Lender may demand, collect, receive All payments and give receipts for reimbursements received by the Territory or its Subsidiaries or any and all money and other property due or to become due Affiliate thereof in connection with or arising out of the AccountsAcquired Assets or Assumed Liabilities (without regard to the effect of, or any reference to, Section 9.1) after the Closing shall be held by such person in Lender’s trust for the benefit of LuxCo and, promptly upon receipt by such person of any such payment or Debtor’s namereimbursement such person shall pay over to LuxCo the amount of such payment or reimbursement without right of setoff.
(c) Lender may file any claim All payments and take any other action reimbursements received by LuxCo or its Affiliates in any court connection with or arising out of law the Excluded Assets or equity which Lender determines to Excluded Liabilities after the Closing Date shall be appropriate held by such person in trust for the purpose of collecting any or all benefit of the Accounts; providedTerritory, howeverand, that Lender promptly upon receipt by such person of any such payment or reimbursement, such person shall not be obligated in any manner to make any demand or to make any inquiry as pay over to the nature Territory the amount of such payment or sufficiency reimbursement without right of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountssetoff.
(d) Debtor, at Lender’s request, shallThe Territory covenants and agrees that it shall use reasonable best efforts to, and Lendershall use reasonable best efforts to cause its Subsidiaries to, at Lender’s option maypromptly forward to LuxCo any mail (physical, give notice in form acceptable to Lenderelectronic or otherwise), facsimile or telephone inquiries of actual or potential clients, customers, suppliers and vendors of or relating to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallConsulting Business, promptly following Lender’s requestincluding, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instrumentswithout limitation, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recoursecustomer orders.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Rollup Agreement (PWCC LTD)
Accounts. With (a) The Borrower and each Guarantor hereby represent and warrant to the Agent and the Lenders, with respect to the Accounts, that: (i) each existing Account represents, and each future Account will represent, a BONA FIDE sale or lease and delivery of goods by the Borrower or the applicable Guarantor, or rendition of services by the Borrower or the applicable Guarantor, in the ordinary course of the Borrower's or such Guarantor's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without limiting Lender’s rights above:
any offset, deduction, defense, or counterclaim except those known to the Borrower or the applicable Guarantor and disclosed to the Agent and the Lenders pursuant to this Agreement; (aiii) Lender may direct no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by the Borrower or the applicable Guarantor will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all goods described in any invoice representing a sale of goods will have been delivered to the Account Debtors to make payment directly to Lender Debtor and all services of the Borrower or to a specified agent of Lenderthe applicable Guarantor described in each invoice will have been performed.
(b) Lender may demandNeither the Borrower nor any Guarantor shall re-date any invoice or sale or make sales on extended dating beyond that customary in the Borrower's or the applicable Guarantor's business or extend or modify any Account. If the Borrower or any Guarantor becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an amount greater than $1,000,000, collectincluding information regarding the Account Debtor's creditworthiness, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s nameBorrower will promptly so advise the Agent.
(c) Lender may file Neither the Borrower nor any claim and take Guarantor shall accept any note or other action in any court of law instrument (except a check or equity which Lender determines to be appropriate other instrument for the purpose immediate payment of collecting money) with respect to any or all of Account without the Accounts; provided, however, that Lender Agent's written consent which shall not be obligated unreasonably withheld or delayed. If the Agent consents to the acceptance of any such instrument, it shall be considered as evidence of the Account and not payment thereof and the Borrower or the applicable Guarantor will promptly deliver such instrument to the Agent, endorsed by the Borrower or the applicable Guarantor to the Agent in any a manner satisfactory in form and substance to make any the Agent. Regardless of the form of presentment, demand or to make any inquiry as to notice of protest with respect thereto, the nature Borrower or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountsapplicable Guarantor shall remain liable thereon until such instrument is paid in full.
(d) The Borrower shall notify the Agent promptly of all disputes and claims in excess of $1,000,000 with any Account Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; Borrower and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right Guarantor agrees to settle, accept reduced amountscontest, or adjust such dispute or claim at no expense to the Agent or any Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the Borrower's or the applicable Guarantor's business when no Event of Default exists hereunder. The Borrower shall send the Agent a copy of each credit memorandum in excess of $1,000,000 as soon as issued. The Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly withwith Account Debtors for amounts and upon terms which the Agent or the Required Lenders, and give releases on behalf of Debtor to Account Debtorsas applicable, upon such terms as Lendershall consider advisable and, in Lender’s good faith business judgmentall cases, determines to be appropriatethe Agent will credit the Borrower's Loan Account with the net amounts received by the Agent in payment of any Accounts.
(ge) Except as otherwise provided by If an Account Debtor returns any Inventory to the UCC Borrower or any Guarantor when no Event of Default exists, then the Borrower or the applicable Guarantor shall promptly determine the reason for such return and except shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Borrower shall immediately report to the Agent any return involving an amount in excess of $500,000. Each such report shall indicate the reasons for any the returns and the locations and condition of the following arising from Lender’s returned Inventory. In the event any Account Debtor returns Inventory to the Borrower or any Lender’s gross negligence Guarantor when an Event of Default exists, the Borrower or willful misconductthe applicable Guarantor, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party forupon the request of the Agent, shall: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, hold the sale or other disposition of which gives rise to an Accountreturned Inventory in trust for the Agent; (ii) any act, omission, error or delay segregate all returned Inventory from all of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third personits other property; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all dispose of the Collateral, including returned Inventory solely according to the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or propertyAgent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall hold be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderreturned Inventory.
Appears in 1 contract
Sources: Loan and Security Agreement (Fruit of the Loom LTD)
Accounts. With respect Each Servicer is required pursuant to the Accountsrelated Warranty and Servicing Agreement to establish and maintain, in the name of the Trustee on behalf of the Holders of interests in the Trust Fund, a Custodial Account, which shall be an Eligible Account, into which such Servicer shall deposit all amounts, except as otherwise set forth therein, required by the terms thereof, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with from which the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action Servicer shall withdraw such amounts as set forth therein. Funds held in any court Custodial Account at any time may be delivered by a Servicer to the Trustee for deposit in an account (which may be the Certificate Account and must satisfy the standards for the Certificate Account as set forth in the definition thereof) and for all purposes of law or equity which Lender determines this Agreement shall be deemed to be appropriate for the purpose a part of collecting any or all of the Accountssuch Custodial Account; provided, however, that Lender the Trustee shall have the sole authority to withdraw any funds held in such account. The Trustee shall establish, prior to the Delivery Date, and shall maintain, in the name of the Trustee on behalf of the Holders of interests in the Trust Fund, the Certificate Account, which shall be an Eligible Account, into which the Trustee upon receipt from the Servicers shall deposit all payments remitted by the Servicers on a Servicer Remittance Date under the related Warranty and Servicing Agreement all amounts received pursuant, to the presentation of claims under the Special Hazard Insurance Policy, Pool Insurance Policy and Mortgagor Bankruptcy Bond, and any amounts required to be remitted by the Depositor pursuant to the terms hereof. All distributions to be made from time to time to holders of interests in the Trust Fund out of funds in the Certificate Account shall be made by or on behalf of the Trustee or Paying Agent. The Trustee will give notice to each Servicer, the Rating Agencies and the Depositor of the location of the Certificate Account and of any change thereof, prior to the use thereof. Funds held in the Certificate Account and delivered to the Trustee earlier than one Business Day prior to the next Distribution Date shall, if invested, be invested in Eligible Investments and shall mature not later than the Business Day immediately preceding such Distribution Date. All income and gain net of any losses realized from any such investment shall be obligated for the benefit of the Trustee and shall be subject to withdrawal at its direction from time to time. The amount of any losses net of any gains not paid to the Trustee incurred in respect of any manner such investments shall be deposited in the Certificate Account out of the Trustee's own funds immediately as realized. The Trustee shall make, to the extent required or authorized hereunder, withdrawals from the Certificate Account for the following purposes:
(i) to pay to any Servicer any amounts to which such Servicer is entitled pursuant to the related Warranty and Servicing Agreement;
(ii) to make required deposits into the Expense Reserve Account;
(iii) to withdraw any demand or amount deposited in the Certificate Account and not required to be deposited therein;
(iv) to make any inquiry as required distributions to the nature Certificateholders pursuant to Section 4.02; and
(v) to clear and terminate the Certificate Account upon termination of this Agreement pursuant to Article IX hereof. The Trustee shall, prior to the Delivery Date, establish and maintain, in the name of the Trustee on behalf of the Holders of interests in the Trust Fund, the Expense Reserve Account, which shall be an Eligible Account, into which the Trustee shall deposit on the Distribution Date an amount equal to the Administrative Fee with respect to the Mortgage Loans, less the applicable Trustee's Fee, upon receipt from the Servicers under the related Warranty and Servicing Agreement or sufficiency otherwise. So long as it does not adversely affect the rating on the Certificates, the Expense Reserve Account may be maintained with the Trustee. The Trustee will give notice to the Rating Agencies and the Depositor of the location of the Expense Reserve Account and any payment received by itchange thereof, or prior to present or file any claim or take any action the use thereof. Funds held in the Expense Reserve Account shall be invested in Eligible Investments and retained in the Expense Reserve Account and all income and other gains from investment of moneys deposited in the Expense Reserve Account shall be deposited in the Expense Reserve Account immediately upon receipt. Any amounts on deposit in the Expense Reserve Account shall be withdrawn from the Expense Reserve Account in the amounts required for application as follows: first, to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable Trustee Fee to Lenderthe Trustee, to the Account Debtors: (i) extent such Trustee Fee has not been paid, and second, to the payment of Debtor’s grant the premiums on the Special Hazard Insurance Policy, Pool Insurance Policy and Mortgagor Bankruptcy Bond as and when due. Upon the termination of a security interest the Trust Fund pursuant to the terms hereof, any amounts remaining on deposit in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which Expense Reserve Account shall be properly endorsed by Debtor paid to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any Holder of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, Class 1-R Certificate upon surrender for the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment payment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsfinal distribution thereon.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Goldman Sachs Asset Backed Securities Corp)
Accounts. With respect The Administrator shall establish and maintain a bookkeeping account in the name of each Participant. The Administrator shall also establish bookkeeping subaccounts, as provided in subsections (a) and (b) below, as elected by the Participant pursuant to the Accounts, and without limiting Lender’s rights above:ARTICLE III.
(a) Lender may direct A Retirement Account shall be established for each Participant. His or her Retirement Account shall be credited with Deferrals (as specified in the Participant's Deferral Election), and those Contributions specified by Employer in the Adoption Agreement and the Participant's allocable share of any earnings or all losses on the foregoing. Each Participant's Account Debtors to make payment directly to Lender or to a specified agent of Lendershall be reduced by any distributions made.
(b1) Lender A Participant may demandelect to establish one or more Fixed Date Accounts by designating a year of payout at the time the Account is initially established. Subject to the establishment of an Education Account pursuant to subsection (2) below, collectthe minimum initial deferral period for each subaccount shall be five (5) years. A Participant may have a maximum number of five Fixed Date Account at any time. Each Participant`s Fixed Date Account shall be credited with Deferrals (as specified in the Participant's Deferral Election) and those Contributions specified by the Employer in the Adoption Agreement and the Participant's allocable share of any earnings or losses on the foregoing, receive and give receipts for Each Participant`s Account shall be reduced by any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s namedistributions made.
(c2) Lender In lieu of designating a future year of payout for a Fixed Date Account pursuant to subsection (1) above, a Participant may file any claim and take any other action in any court of law elect to have one or equity which Lender determines more Fixed Date Accounts be paid to be appropriate a Participant for the purpose purposes of collecting any meeting a Student's post-secondary educational expenses. If this alternative is elected by Participant, one or all more Education Accounts shall be established. For purposes of this subsection, the Accounts; provided, however, that Lender term "Student" shall not be obligated those categories of persons selected by the Employer in any manner to make any demand or to make any inquiry as the Adoption Agreement. The maximum number of Education Accounts a Participant may have is subject to the nature or sufficiency maximum number of any payment received by it, or to present or file any claim or take any action to collect or enforce Fixed Date Accounts permitted under subsection (I). If a Student dies before distribution of all amounts in the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, respective Education Account is made to the Participant, amounts credited to such Education Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor credited instead to Lender, with recoursethe Participant's Retirement Account.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct The Borrower shall cause to be maintained a non-interest bearing collections account (a “Collection Account”) with the Collateral Agent in the name of the Borrower (but subject to the restrictions in clause (f) of this Section 6.12), and shall cause all Collections to be deposited in the Collection Account as and when received. The Borrower shall instruct each TSA Party and other payor (in each case, to the extent not already so notified) that all payments due or to become due under the TSA (except for Excepted Payments (which shall be payable to the Persons for whose benefit any such payment is made)) or all Account Debtors otherwise in respect of amounts and other receivables of the Borrower are to make payment be made directly to Lender the Collection Account. The Administrative Agent shall apply amounts on deposit in the Collection Account to the repayment of the Credit Obligations in accordance with the applicable provisions of Section 2.07(c)(ii). The Borrower shall cause to be maintained a borrower equity account (a “Borrower Equity Account”) with the Borrower Account Bank in the name of the Borrower. The Collateral Agent shall establish, in the name of the Borrower, as and when required, a non-interest bearing cash collateral account (the “Cash Collateral Reserve Account”) and such other accounts as are required from time to time by the terms of the Loan Documents for purposes of receiving, distributing or otherwise administering proceeds of Collateral (together with the Collection Account and the Borrower Equity Account, the “Accounts”). The Collateral Agent shall provide monthly statements of activity to the Borrower and Administrative Agent for the Collection Account and the Cash Collateral Reserve Account. The requirements of this Section 6.12 shall be performed by the Collateral Agent granting the Borrower and the Administrative Agent on-line read only access to the Collection Account and the Cash Collateral Reserve Account. The Collateral Agent shall have no obligation to invest or reinvest funds in Cash Equivalents if funds are deposited with the Collateral Agent after 11:00 a.m. (New York City time) on such day of deposit. Instructions received after 11:00 a.m.(New York City time) will be treated as if received on the following business day. The Collateral Agent shall have no responsibility for any investment losses resulting from the investment, reinvestment or liquidation of any funds in the Collection Account or the Cash Collateral Reserve Account. Any interest or other income received on such investment and reinvestment of funds in the Collection Account and the Cash Collateral Reserve Account shall become part of the Collection Account or the Cash Collateral Reserve Account, as applicable, and any losses incurred on such investment and reinvestment of the Collection Account and the Cash Collateral Reserve Account shall be debited against the Collection Account or the Cash Collateral Reserve Account, as applicable. If a specified agent selection is not made and a written direction not given to the Collateral Agent, funds in the Collection Account and/or the Cash Collateral Reserve Account shall remain un-invested with no liability for interest therein. It is agreed and understood that the entity serving as Collateral Agent may earn fees associated with the investments outlined above in accordance with the terms of Lendersuch investments. Notwithstanding the foregoing, the Collateral Agent shall have the power to sell or liquidate the foregoing investments whenever the Collateral Agent shall be required to release all or any portion of the funds pursuant to Section 6.12(a) or Section 6.12(c) hereof, as applicable. In no event shall the Collateral Agent be deemed an investment manager or adviser in respect of any selection of investments hereunder. It is understood and agreed that the Collateral Agent or its affiliates are permitted to receive additional compensation that could be deemed to be in the Collateral Agent’s economic self-interest for (1) serving as investment adviser, administrator, shareholder servicing agent, custodian or sub‑custodian with respect to certain of the investments, (2) using affiliates to effect transactions in certain investments and (3) effecting transactions in investments. The Borrower shall pay or reimburse the Collateral Agent upon request for any transfer taxes or other taxes relating to the Collection Account and the Cash Collateral Reserve Account funds incurred in connection herewith and shall indemnify and hold harmless the Collateral Agent from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Collection Account and the Cash Collateral Reserve Account shall be subject to withholding regulations then in force with respect to United States taxes. The Borrower will provide the Collateral Agent with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications. It is understood that the Collateral Agent shall only be responsible for income reporting with respect to income earned on the funds in the Collection Account and the Cash Collateral Reserve Account and will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Collateral Agent.
(b) Lender may demandUpon each Asset Disposition, collectthe Borrower shall cause the payor of the Net Cash Proceeds relating to such Asset Disposition to deposit such Net Cash Proceeds into the Collection Account. Unless an Event of Default has occurred and is continuing, receive and give receipts for any and all money and other property due or such Net Cash Proceeds shall be retained in the Collection Account until the applicable Net Cash Proceeds Distribution Date, upon which date the Administrative Agent shall direct the Collateral Agent to become due distribute such Net Cash Proceeds in connection accordance with the Accounts, in Lender’s or Debtor’s nameapplicable provisions of Section 2.07(c)(ii).
(c) Lender may file On the Closing Date, the Borrower shall deposit $1,500,000 into the Cash Collateral Reserve Account. On each Payment Date, the Cash Collateral Top-Up Amount will be deposited into the Cash Collateral Reserve Account to the extent such funds are available. Unless an Event of Default has occurred and is continuing, if the Administrative Agent anticipates, in its reasonable discretion, a Cash Collateral Shortfall on any claim Payment Date, no later than three (3) Business Days prior to such Payment Date, the Administrative Agent shall instruct the Collateral Agent to withdraw from the balance in the Cash Collateral Reserve Account, if any, an aggregate amount equal to the lesser of (i) the amount of the Cash Collateral Shortfall and take any other action (ii) the balance in any court of law or equity which Lender determines the Cash Collateral Reserve Account to be appropriate for the purpose of collecting any or all of the Accounts; providedapplied in accordance with Section 2.07(c)(ii) on such Payment Date to be distributed, howeverfirst, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency Administrative Agent and the Collateral Agent for any fees and expenses due and payable on such Payment Date pursuant to clause first of Section 2.07(c)(ii) and, second, to the Administrative Agent for payment to the Lenders, ratably (in accordance with the respective amount of interest then due and payable to each), for any payment received by it, or accrued and unpaid interest on the Loans due and payable on such Payment Date pursuant to present or file any claim or take any action to collect or enforce the payment clause fourth of any or all of the AccountsSection 2.07(c)(ii).
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, Each Account will be pledged to the Secured Parties pursuant to the Security Agreement. So long as no Event of Default has occurred and is continuing, the Borrower Account Debtors: (i) Bank shall follow any instruction of Debtor’s grant the Borrower in respect of a security interest in the Accounts to LenderBorrower Equity Account; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtorsprovided that, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: the Borrower Account Bank shall not be required to follow any instruction of the Borrower in respect of the Borrower Equity Account.
(ie) shall immediately pay or deliver such payment Any amounts from time to Lender time held in the original form Accounts may be invested in which received Cash Equivalents, at the Borrower’s risk as directed in writing by Debtor; the Borrower, until the application thereof in accordance with Section 2.07(c)(ii) hereof.
(iif) Other than with respect to funds available in the Collection Account pursuant to clause seventh of Section 2.07(c)(ii) on each Payment Date (so long as no Event of Default shall endorse to Lenderhave occurred and be continuing), with recoursethe Collateral Agent shall not follow any instruction of the Borrower in respect of an Account. Upon the occurrence and during the continuance of an Event of Default, all checks, drafts, money orders, notesthe Collateral Agent may notify the Account Bank of an Event of Default (a “Relevant Notice”), and the Collateral Agent may direct by notice the Account Bank to pay to the Administrative Agent the amount specified in such notice from the Borrower Equity Account, and the Administrative Agent shall apply such amounts received from the Account Bank to the repayment of the Credit Obligations in accordance with the applicable provisions of Section 2.07(c)(ii). If at any time after a Relevant Notice is sent by the Collateral Agent, no Event of Default is continuing (whether because any such Event of Default has been cured by the Borrower or waived in accordance with Section 10.03), and as of such time neither the Administrative Agent nor Collateral Agent has taken any actions permitted under Section 8.02 with respect to an Event of Default (other instruments or documents representing than issuing any Relevant Notice), then the Collateral Agent shall instruct the Account Bank that the Collateral Agent rescinds such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to LenderRelevant Notice.
Appears in 1 contract
Sources: Loan Agreement (PBF Holding Co LLC)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) The Borrowers hereby jointly and severally represent and warrant to the Lender may direct and agree with the Lender that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by the Borrowers, or rendition of services by the Borrowers, in the ordinary course of the Borrowers' business; (ii) each existing Account of the Borrowers is, and each future Account of the Borrowers will be a valid, binding and enforceable obligation of its relevant Account Debtor for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof 44, delivered to the Lender, without offset, deduction, defense, or counterclaim; (iii) no payment will be received with respect to any Account of the Borrowers, and no credit, discount, or extension, or agreement therefor will be granted on any Account of the Borrowers, except as reported to the Lender in accordance with this Agreement; (iv) each copy of an invoice delivered to the Lender by the Borrowers will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all goods described in any invoice representing a sale of goods will have been delivered to the Account Debtors to make payment directly to Lender or to a specified agent Debtor and all services of Lenderthe Borrowers described in any invoice will have been performed.
(b) Lender may demandThe Borrowers shall not re-date any invoice or sale or make sales on extended dating beyond that customary in the relevant Borrower's business or extend or modify any Account. If a Borrower becomes aware of any matter affecting any Account of either Borrower, collectincluding information regarding the Account Debtor's creditworthiness, receive and give receipts for any and all money and other property due or to become due in connection with such Borrower will promptly so advise the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file The Borrowers shall not accept any claim and take any note or other action in any court of law instrument (except a check or equity which Lender determines to be appropriate other instrument for the purpose immediate payment of collecting money) with respect to any Account (other than an ABN AMRO Receivable) of either Borrower without the Lender's written consent. If the Lender consents to the acceptance of any such note or all other instrument, it shall be considered as evidence of the Accounts; providedsuch Account and not payment thereof, however, that Lender shall not be obligated in any manner to make any demand and the relevant Borrower will promptly deliver such note or to make any inquiry as instrument to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all Lender appropriately endorsed. Regardless of the Accountsform of presentment, demand, notice of dishonor, protest, and notice of protest with respect thereto, the Borrowers will remain liable thereon until such note or instrument is paid in full.
(d) Debtor, The Borrowers shall notify the Lender promptly of all disputes and claims with any of their Account Debtors and settle or adjust them at Lender’s request, shall, and no expense to the Lender, at but no discount, credit or allowance shall be granted to any such Account Debtor without the Lender’s option may's consent, give notice in form acceptable to Lenderexcept for discounts, to the Account Debtors: (i) of Debtor’s grant of a security interest credits and allowances made or given in the Accounts to Lender; ordinary course of the relevant Borrower's business when no Event of Default exists hereunder. The Borrowers shall send the Lender a copy of each credit memoranda in excess of $25,000 as soon as issued and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals copies of all Accounts Receivable Documentation together with the originals credit memorandum on a weekly basis. The Lender may at all times when an Event of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing Default exists hereunder settle or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, with customers or Account Debtors of the Borrowers for amounts and give releases on behalf of Debtor to Account Debtors, upon such terms as Lenderwhich the Lender considers advisable and, in Lender’s good faith business judgmentall cases, determines to be appropriatethe Lender will credit the Borrower's loan accounts with only the net amounts received by the Lender in payment of any Accounts of the Borrowers.
(ge) Except as otherwise provided by If an Account Debtor of either Borrower returns any Inventory to a Borrower when no Event of Default exists, then the UCC relevant Borrower shall promptly determine the reason for such return and except shall issue a credit memorandum to such Account Debtor in the appropriate amount. The Borrowers shall immediately report to the Lender any return involving an amount in excess of $25,000 and shall report all returns to the Lender on a weekly basis. Each such report shall indicate the reasons for any the returns and the locations and condition of the following arising from Lender’s or returned Inventory. In the event any Lender’s gross negligence or willful misconductAccount Debtor of a Borrower returns Inventory to such Borrower when an Event of Default exists, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party forsuch Borrower shall: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, hold the sale or other disposition of which gives rise to an Accountreturned Inventory in trust for the Lender; (ii) any act, omission, error or delay segregate all returned Inventory from all of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third personits other Property; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance dispose of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.the
Appears in 1 contract
Sources: Loan and Security Agreement (California Microwave Inc)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or prior to July 16, 2002, the Borrower shall cause to be established one or more accounts with the Depositary pursuant to the Depositary Agreement in the name of the Borrower. The Borrower shall cause the Depositary to create a Collection Account, a Liquidity Reserve Account, a Maintenance Reserve Account and a Modification and Improvements Account, in each case in accordance with the terms of the Depositary Agreement. The Borrower shall notify (and the Borrower hereby authorizes the Agent so to notify), in each case following the occurrence and during the continuation of a Manager Default or an Event of Default, each Lessee and other account debtors of the Borrower in writing that each Lease and other accounts receivable of the Borrowers has been assigned to the Agent under the Loan Documents for the benefit of the Secured Parties (as defined in the Security Agreement). Upon establishment of the Collection Account under the Depositary Agreement, the Borrower also shall notify and instruct each Lessee that all payments due or to become due under each Portfolio Lease (except for Excepted Payments (which shall be payable to the Persons for whose benefit any such payment is made)) or all Account Debtors otherwise in respect of amounts and other receivables of the Borrower are to make payment be made directly to Lender the Collection Account. Prior to the establishment of the Collection Account in accordance with the Depositary Agreement, all Cash Flow and other amounts received by the Borrower or by the Manager on its behalf shall be received and held in trust for the benefit of the Agent and the Secured Parties, such amounts to a specified agent be remitted to the Depositary for deposit to the Collection Account promptly following establishment of Lenderthe Collection Account.
(b) Lender Any amounts from time to time held in the Collection Account, the Maintenance Reserve Account, the Modification and Improvements Account and the Liquidity Reserve Account may demand, collect, receive and give receipts for any and all money and other property due or be invested in Cash Equivalents (subject to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all provisions of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) DebtorDepository Agreement), at Lender’s request, shall, and Lender, at Lender’s option may, give notice the Borrower's risk as directed in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided writing by the UCC and except for any of Borrower, until the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible application thereof in any way or under any circumstances to Debtor or any other party for: (iaccordance with Section 2.07(c) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following . Upon the occurrence and during the continuance of an Event of Default, Debtor: the Agent may direct by notice the Depositary to pay to the Agent the amount specified in such notice from the Account(s) specified in such notice, and the Agent shall apply such amounts received from the Depositary to the repayment of the Obligations in accordance with the applicable provisions of Section 2.07(c).
(c) Subject to the provisions of the Depository Agreement, the Agent may from time to time in its sole discretion (and, to the extent such application would have the effect of curing a Default under Section 9.01(a) hereof or if the Loans have become or been declared immediately due and payable pursuant to Section 9.02, shall) instruct the Depositary to pay the Agent any amounts from time to time on deposit in the Liquidity Reserve Account; provided that, so long as no Event of Default shall have occurred and then be continuing, (i) the Agent shall immediately pay or deliver have consulted with the Borrower prior to giving such payment to Lender in the original form in which received by Debtor; instruction and (ii) if and to the extent determined by the Agent and the Borrower that a reserve is required to be held in the Accounts in respect of anticipated claims by a Lessee for payment of deposit, maintenance reserves or insurance or indemnity payments, such reserve shall endorse to Lender, be retained in the Accounts.
(d) The Agent shall apply any amounts received by it under this Section 6.17 in accordance with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to LenderSection 2.07(c).
Appears in 1 contract
Accounts. With respect to the AccountsThe Borrower covenants, agrees, represents, and without limiting Lender’s rights abovewarrants as follows:
(a) Lender may direct With respect to the Borrower's Accounts: (i) each existing Account (other than Accounts purchased from an RPA Seller) represents, and each future Account (other than Accounts purchased from an RPA Seller) will represent, a BONA FIDE sale or lease and delivery of goods by the Borrower, or rendition of services by the Borrower, in the ordinary course of the Borrower's business and, with respect to each Account purchased by the Borrower from an RPA Seller under the RPA, represents a BONA FIDE sale or lease and delivery of goods by such RPA Seller, or rendition of services by such RPA Seller, in the ordinary course of such RPA Seller's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms then in effect or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to the Borrower and disclosed to the Agent and the Lenders pursuant to this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account except as reported to the Agent and the Lenders as required by this Agreement; (iv) each copy of an invoice delivered to the Agent by the Borrower, or by any RPA Seller on behalf of the Borrower pursuant to the RPA, will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all goods described in any invoice representing a sale of goods will have been delivered to the Account Debtors to make payment directly to Lender Debtor and all services of the Borrower, any RPA Seller, or to a specified agent of Lenderany other Person described in each invoice will have been performed.
(b) Lender may demand, collect, receive and give receipts for Neither the Borrower nor any and all money and other property due RPA Seller shall re-date any invoice or to become due in connection with the Accounts, in Lender’s sale or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, make sales on extended dating beyond that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest customary in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith Borrower's or the applicable RPA Seller's business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing extend or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling modify any Account for less than outside the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.ordinary course of
Appears in 1 contract
Accounts. With respect Except as otherwise provided in this Section 4.2, each Debtor shall continue to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and at its own expense, all money and other property amounts due or to become due in to such Debtor with respect to Accounts of such Debtor and apply such amounts as are so collected to the outstanding balances thereof. In connection with such collections, each Debtor may take (and, at Administrative Agent’s direction during the Accountscontinuance of any Event of Default, in Lender’s shall take) such commercially reasonable action as such Debtor or Debtor’s name.
(c) Lender Administrative Agent may file any claim and take any other action in any court of law deem necessary or equity which Lender determines reasonably advisable to be appropriate for the purpose of collecting any or all enforce collection of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriateDebtor. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender Administrative Agent shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for at any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following time after the occurrence and during the continuance of an Event of DefaultDefault under the Credit Agreement, Debtorto: (i) shall immediately pay notify the Account Debtor under any Accounts of such Debtor (or deliver any other Person obligated thereon) of the Lien granted upon such Accounts in favor of Administrative Agent and to direct such Account Debtors and other Persons to make payment of all amounts due or to Lender in the original form in which received by Debtorbecome due or otherwise render performance directly to Administrative Agent; (ii) shall endorse exercise the rights of any Debtor with respect to Lender, the obligation of the Account Debtor to make payment or otherwise render performance to such Debtor and with recourse, all checks, drafts, money orders, notes, respect to any property that secures the obligations of such Account Debtor or any other Person obligated on the Collateral; and other instruments or documents representing such payment; (iii) adjust, settle or compromise the amount or payment of such Accounts. After the occurrence and during the continuance of an Event of Default and upon notice to the Debtors all amounts and Proceeds received by a Debtor with respect to the Accounts shall not commingle be received in trust for the benefit of Administrative Agent (on behalf of the Secured Parties), shall be segregated from other funds of such payment Debtor and shall be forthwith paid over to Administrative Agent in the same form as so received (with any necessary endorsement) to be applied pursuant to the terms of the Credit Agreement. No Debtor shall adjust, settle or compromise the amount or payment of any of its Accounts, or release wholly or partly any Account Debtor’s , or allow any credit or discount thereon (other funds than credits and discounts in the ordinary course of business and the adjustment, settlement or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property compromise of Accounts in an express trust for Lender until paid or delivered to Lenderthe ordinary course of business).
Appears in 1 contract
Sources: Security Agreement (RealD Inc.)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or prior to the date hereof, the Borrower shall cause to be established one or more accounts with the Depositary pursuant to the Depository Agreement in the name of the Borrower. The Borrower shall cause the Depositary to create a Collection Account, a Liquidity Reserve Account, a Maintenance Reserve Account, a Security Deposits Account, an Operating Expenses Account, a Modifications and Improvements Account, a Net Cash Proceeds Account and a Substitution Account, in each case in accordance with the terms of the Depository Agreement. The Agent shall cause the Depositary to create a Prefunding Account in accordance with the terms of the Depository Agreement. The Borrower shall notify (and the Borrower hereby authorizes the Collateral Agent so to notify), in each case following the occurrence and during the continuation of an Event of Default, each Lessee and other account debtors of the Borrower in writing that each Lease and other accounts receivable of the Borrowers has been assigned to the Collateral Agent under the Loan Documents for the benefit of the Protected Parties. The Borrower also shall notify and instruct each Lessee that all payments due or to become due under each Portfolio Lease (except for Excepted Payments (which shall be payable to the Persons for whose benefit any such payment is made)) or all Account Debtors otherwise in respect of amounts and other receivables of the Borrower are to make payment be made directly to Lender or to a specified agent of Lenderthe Customer Payments Account.
(b) Lender Any amounts from time to time held in the Collection Account, the Maintenance Reserve Account, the Modifications and Improvements Account, Security Deposits Account, Operating Expenses Account, the Liquidity Reserve Account and the Substitution Account may demand, collect, receive and give receipts for any and all money and other property due or be invested in Cash Equivalents (subject to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all provisions of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) DebtorDepository Agreement), at Lenderthe Borrower’s request, shall, and Lender, at Lender’s option may, give notice risk as directed in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided writing by the UCC and except for any of Borrower, until the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible application thereof in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection accordance with any of the Accounts following this Agreement. Upon the occurrence and during the continuance of an Event of Default, Debtor: the Agent may direct by notice the Depositary to pay to the Agent the amount specified in such notice from the Account(s) specified in such notice, and the Agent shall apply such amounts received from the Depositary to the repayment of the Obligations in accordance with the applicable provisions of Section 2.07(c).
(c) Subject to the provisions of the Depository Agreement, the Agent may at any time and from time to time in its sole discretion (and, to the extent such application would have the effect of curing a Default under Section 9.01(a) hereof or if the Loans have become or been declared immediately due and payable pursuant to Section 9.02, shall) instruct the Depositary to pay into the Collection Account the amounts on deposit in the Liquidity Reserve Account if and to the extent the amounts in the Collection Account on any Settlement Date would be insufficient to pay in full the items described in clauses first, second, third, fourth and fifth of Section 2.07(c)(i) or clauses first, second, third, fourth and fifth of Section 2.07(c)(ii), as the case may be; provided that, so long as no Event of Default shall have occurred and then be continuing, (i) the Agent shall immediately pay or deliver have consulted with the Borrower prior to giving such payment to Lender in the original form in which received by Debtor; instruction and (ii) if and to the extent determined by the Agent and the Borrower that a reserve is required to be held in the Accounts in respect of anticipated claims by a Lessee for payment of deposit, maintenance reserves or insurance or indemnity payments, such reserve shall endorse be retained in the Accounts.
(d) The Borrower hereby agrees to Lender, with recourse, endeavor to transfer all checks, drafts, money orders, notesAvailable Collections from the Customer Payments Account to the Collections Account within three (3) Business Days of deposit in the Customer Payments Account but in no event later than six (6) Business Days of deposit of any Available Collections in the Customer Payments Account, and other instruments shall provide timely written notice thereof (which notice may be made by facsimile or documents representing such payment; (iiielectronic mail) shall not commingle such payment to the Agent, in each case in accordance with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderthe Customer Collections Account Administration Agreement.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender Prior to the Closing Date, the Servicer shall open, at a depository institution (which may direct be the Trustee), an account denominated "Collection Account -- GT 1997-4, Bankers Trust Company, Trustee" (the "Collection Account") and an account denominated "Payahead Account -- GT 1997-4, Bankers Trust Company, as agent" (the "Payahead Account") for the benefit of the Trustee on behalf of the Obligors and the Certificateholders, as their interests may appear, and an account denominated "Prefunding Account -- GT 1997-4, Bankers Trust Company, Trustee" for the benefit of the Certificateholders (the "Prefunding Account," and, collectively, with the Collection Account and the Payahead Account, the "Accounts"). The Accounts shall be Eligible Accounts. The Servicer shall give the Trustee and the Insurer at least five Business Days' written notice of any change in the location of any Account and any related account identification information. All moneys deposited in or credited to, from time to time, the Collection Account and Prefunding Account shall be part of the Trust and all moneys deposited in or credited to, from time to time, the Collection Account Debtors and Prefunding Account shall be invested by the Trustee in Eligible Investments pursuant to make payment directly to Lender or to a specified agent of LenderSection 4.1(c) and 4.1(d), respectively.
(b) Lender may demandIf as of the last day of a Collection Period a payment in an amount less than the scheduled payment of Monthly P&I has been made for a Rule of 78's Contract with respect to which amounts have been deposited in or credited to the Payahead Account in a preceding Collection Period in accordance with Sections 3.1 and 4.2(a), collectthe Servicer shall withdraw from the Payahead Account and deposit into the Collection Account by the fifth Business Day preceding the Distribution Date immediately succeeding such Collection Period the amount of such Monthly P&I, receive to the extent available from amounts deposited in or credited to the Payahead Account with respect to such Contract. Amounts on deposit in the Payahead Account shall be invested by Bankers Trust Company upon the written direction of the Servicer in Eligible Investments which mature not later than the fifth Business Day prior to the Distribution Date to which such amounts relate, and give receipts for any earnings on such Eligible Investments shall be payable to the Servicer. The Payahead Account and all money and other property due amounts on deposit therein or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender credited thereto shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all considered part of the AccountsTrust Estate.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Onyx Acceptance Grantor Trust 1997-4)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Borrower shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to the Administrative Agent sales, collection, reconciliation and other reports in form satisfactory to the Administrative Agent, on such periodic basis as Agent may direct reasonably request. If Accounts in an aggregate face amount of $250,000 or more cease to be Eligible Accounts (other than due to collection), the Borrower shall notify Agent of such occurrence promptly (and in any or all Account Debtors to make payment directly to Lender or to a specified agent of Lenderevent within one Business Day) after any Loan Party has knowledge thereof.
(b) Lender may demand, collect, receive and give receipts If an Account of the Borrower includes a charge for any Taxes and all money an Event of Default has occurred and other property due or to become due in connection with is continuing, the AccountsAdministrative Agent is authorized, in Lender’s its discretion, to pay the amount thereof to the proper taxing authority for the account of the Borrower and to charge the Borrower therefor; provided, that neither Agent nor Lenders shall be liable for any Taxes that may be due from the Borrower or Debtor’s namerelate to any Collateral.
(c) Lender may file Whether or not a Default or Event of Default exists, the Administrative Agent shall have the right at any claim and take time, in the name of Agent, any designee of the Administrative Agent or the Borrower, to verify the validity, amount or any other action in matter relating to any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all Accounts of the Accounts; providedBorrower by mail, however, that Lender telephone or otherwise. The Borrower shall not be obligated cooperate fully with the Administrative Agent in an effort to facilitate and promptly conclude any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountssuch verification process.
(d) DebtorThe Borrower shall maintain Dominion Accounts pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Borrower shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, at Lenderestablishing the Administrative Agent’s request, shallcontrol over and Lien in the lockbox or Dominion Account (which may be exercised by the Administrative Agent only during a Dominion Trigger Period and subject to the terms of the Intercreditor Agreement) requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and Lenderwaiving offset rights of such servicer or bank, at Lender’s option except for customary administrative charges. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, give notice during any Dominion Trigger Period, require immediate transfer of all funds in form acceptable such account to Lender, a Dominion Account maintained with Bank of America. The Administrative Agent and Lenders assume no responsibility to the Account Debtors: (i) Borrower for any lockbox arrangement or Dominion Account, including any claim of Debtor’s grant of a security interest in the Accounts accord and satisfaction or release with respect to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTany Payment Items accepted by any bank.
(e) Debtor shallThe Borrower shall request in writing and otherwise take all necessary steps to ensure that all payments on Accounts or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account). If the Borrower or any other Loan Party receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for the Administrative Agent and promptly following Lender’s request, deliver to Lender (not later than the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the next Business Day) deposit same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourseinto a Dominion Account.
(f) Lender During any Dominion Trigger Period, the ledger balance in the main Dominion Account(s) as of the end of a Business Day shall have be applied to the right Obligations at the beginning of the next Business Day (other than Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements) at the beginning of the next Business Day. Any resulting credit balance shall not accrue interest in favor of the Borrower and shall be made available to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf the Borrower as long as no Default or Event of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriateDefault exists.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconductNo later than February 1, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods2022, the sale or other disposition Loan Parties shall provide evidence to the Administrative Agent that the Loan Parties have restructured its Accounts to establish a Designated Disbursement Account and have discontinued use of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsDominion Accounts as disbursement accounts.
(h) If for During any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of DefaultDominion Trigger Period, Debtor: (i) shall immediately pay Borrower may request a Revolving Borrowing or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property Swingline Borrowing in an express trust aggregate principal amount not to exceed the Multi-Day Borrowing Amount be deposited into the Designated Disbursement Account for Lender until paid application by the Loan Parties to ordinary course business expenses payable on the day of such deposit or within the next three (3) Business Days so long as all expenses included in calculating such Multi-Day Borrowing Amount do not materially deviate or depart from the projected uses of cash most recently delivered to Lenderthe Administrative Agent in accordance with Section 7.11 and Part II(a) of Schedule 7.11.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any On or all prior to the Closing Date, (i) the Issuer shall cause the Servicer to establish and maintain, in the name of the Indenture Trustee, for the benefit of the Noteholders and, to the extent set forth herein, the Certificateholders, the Collection Account Debtors as provided in Section 5.01 of the Sale and Servicing Agreement [and (ii) the Issuer will establish and maintain with the Securities Intermediary and pledge to make payment directly the Indenture Trustee for the benefit of the Noteholders the Yield Supplement Account in the name of the Indenture Trustee pursuant to Lender or to a specified agent the Yield Supplement Agreement as provided in Section 5.08 of Lenderthe Sale and Servicing Agreement and the Securities Account Control Agreement].
(b) Lender may demandOn or prior to the Closing Date, collectthe Issuer will cause the Seller to, receive pursuant to the Securities Account Control Agreement, establish and give receipts for any and all money and other property due or to become due in connection maintain with the AccountsSecurities Intermediary in the name of the Indenture Trustee, for the benefit of the Noteholders, the Reserve Account as provided in Lender’s or Debtor’s nameSection 5.07 of the Sale and Servicing Agreement.
(c) Lender may file any claim The Indenture Trustee shall transfer all amounts remaining on deposit in the Collection Account on the Distribution Date on which the Notes of all Classes have been paid in full [and take any other action in any court of law all outstanding payments due to the [Swap Counterparty][Cap Provider] have been made] (or equity which Lender determines to be appropriate for the purpose of collecting any or substantially all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as Trust Estate is otherwise released from the lien of this Indenture) to the nature Trust Collection Account and shall take all necessary or sufficiency of any payment received by it, or appropriate actions to present or file any claim or take any action to collect or enforce the payment of any or transfer all of its right, title and interest in the AccountsCollection Account, all funds or investments held therein and all proceeds thereof, whether or not on behalf of the Securityholders [or the [Swap Counterparty][Cap Provider]], to the Owner Trustee for the benefit of the Certificateholders, subject to the limitations set forth herein with respect to amounts held for payment to Noteholders that do not promptly deliver a Note for payment on such Distribution Date.
(d) Debtor[The Indenture Trustee shall transfer all amounts remaining on deposit in the Yield Supplement Account on the Distribution Date on which the Notes of all Classes have been paid in full (or substantially all of the Trust Estate is otherwise released from the lien of this Indenture) to the Owner Trustee for the benefit of the Certificateholders and shall take all necessary or appropriate actions to transfer all of its right, at Lender’s requesttitle and interest in the Yield Supplement Account, shallall funds or investments held therein and all proceeds thereof, and Lender, at Lender’s option may, give notice in form acceptable to Lenderwhether or not on behalf of the Securityholders, to the Account Debtors: (i) of Debtor’s grant of a security interest in Owner Trustee for the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any benefit of the following arising from Lender’s or any Lender’s gross negligence or willful misconductCertificateholders, Lender which amounts the Owner Trustee shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, deposit into the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Trust Collection Account, including any act or omission which results in subject to the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account limitations set forth herein with respect to amounts held for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing Noteholders that do not promptly deliver a Note for payment on such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to LenderDistribution Date.]
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any On or all Account Debtors prior to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demandthe date hereof, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines Borrower shall cause to be appropriate for established and shall thereafter maintain the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, Master Collection Account and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtoran Operating Account, each of which shall be properly endorsed by Debtor subject to Lenderthe control of the Collateral Agent pursuant to an Account Control Agreement. Each Subsidiary of the Borrower shall cause to be established and shall maintain an Operating Account and a Collection Account, with recourseeach of which shall be subject to the control of the Collateral Agent pursuant to an Account Control Agreement. All Collections and other proceeds of Collateral shall be deposited directly into each Collection Account and Collections and such proceeds shall not be deposited into any other accounts, except as permitted herein. All Collections deposited into each Collection Account shall be swept into the Master Collection Account on a daily basis. All Collections and proceeds of Collateral shall be held in trust for the benefit of Collateral Agent on behalf of the Secured Parties until deposited into the Master Collection Account for application pursuant to Section 2.12.
(fb) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly withBorrower will, and give releases will cause each Subsidiary to, instruct and cause Payment Processor and each of their customers to deposit all Collections directly into the applicable Collection Account. Borrower and each Subsidiary acknowledges and agrees that the funds on behalf deposit in each Collection Account and in the Master Collection Account are collateral security for the Obligations secured thereby. Without the prior written consent of Debtor to Account Debtorsthe Administrative Agent, upon Borrower and each Subsidiary shall not change such terms as Lender, in Lender’s good faith business judgment, determines instructions or otherwise permit such instructions to be appropriate.
(g) Except as otherwise provided by changed. Borrower and each Subsidiary shall not establish or maintain any other Deposit Accounts or Securities Accounts other than the UCC and except for any applicable Deposit Accounts listed on Appendix E, without the consent of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following Administrative Agent. Borrower and each Subsidiary acknowledge and agree that upon the occurrence and during the continuance of an Event of DefaultDefault funds in the Master Collection Account may be applied as provided in Section 2.12(c).
(c) Other than as expressly provided herein, Debtor: no Credit Party may withdraw any funds, or permit any funds to be withdrawn, from the Master Collection Account, any Collection Account, Recycle Reserve Account, or Wind-Down Reserve Account without the prior written consent of the Administrative Agent. Any deposit made into the Recycle Reserve Account hereunder shall be irrevocable, and the amount of such deposit and any money, instruments, investment property or other property on deposit in, carried in or credited to the Recycle Reserve Account hereunder and all interest thereon shall be held in trust by the Collateral Agent and applied solely as provided herein.
(d) So long as no Default or Event of Default then exists, promptly upon Borrower’s written request to Collateral Agent, Collateral Agent shall direct the Account Bank to release the funds on deposit in the Recycle Reserve Account to Borrower to be used to purchase additional Eligible Assets from an Underlying Business Seller pursuant to an Underlying Business Acquisition Agreement, provided such purchase shall not create a Borrowing Base Deficiency.
(e) So long as (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; no Event of Default then exists and (ii) the Portfolio Debt to Free Cash Flow Ratio is less than 5.00:1.00 for the immediately preceding three consecutive calendar months, the Wind- Down Required Reserve Amount shall endorse be equal to Lender, with recourse, all checks, drafts, money orders, notes$0, and other instruments or documents representing such payment; (iii) promptly upon Borrower’s written request to Collateral Agent, Collateral Agent shall not commingle such payment with any of Debtor’s other direct the Account Bank to release the funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property on deposit in an express trust for Lender until paid or delivered the Wind-Down Reserve Account to LenderBorrower.
Appears in 1 contract
Sources: Credit Agreement (Healing Co Inc.)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any The Trustee shall establish and maintain separately with respect to each Trust the Collection Account, the Funding Account, if any, and the Certificate Account in the name of the Trustee for the benefit of the Certificateholders. The Collection Account, the Funding Account and the Certificate Account shall be segregated trust accounts established with the trust department of the Trustee. The Servicer shall establish the Lock-Box Account pursuant to the Servicing Agreement. The Lock-Box Account shall be a non-interest bearing account established with a Lock-Box Account Depository, which shall at all times be an Eligible Institution, by the Servicer for the sole benefit of the Trust and other holders of retail installment sales contracts originated by Aegis Finance or all Account Debtors to make payment directly to Lender or to a specified agent its Affiliates. All of Lenderthe foregoing Accounts shall be Eligible Accounts.
(b) Lender may demandAmounts held in the Collection Account, collectthe Certificate Account and the Funding Account shall be invested by the Trustee, receive upon the written direction of the Seller, in Eligible Investments. Any such investment in the Certificate Account or the Funding Account shall mature no later than (i) one Business Day before the Distribution Date (or Funding Date with respect to the Funding Account), next succeeding the date of investment or, (ii) in the case of money market fund investments, on such Distribution Date. Any such investment in the Collection Account shall mature not later than two Business Days before such Distribution Date. Any written investment direction by the Seller shall certify that any such investment is authorized by this Section 5.01. The Trustee shall have no authority to sell or otherwise dispose of Eligible Investments attributable to funds held in the Certificate Account, the Collection Account or the Funding Account prior to their respective maturity dates. Interest and give receipts earnings on investments of funds in any Account shall be credited to and all losses borne by the Account with respect to which they were derived. All accounts with the Trustee must be trust accounts subject to regulations substantially similar to 12 C.F.R. 9.10(b). The Trustee shall not have any responsibility or liability for any and all money and other property due investment of moneys at the direction of the Seller or to become due in connection with the Accounts, in Lender’s or Debtor’s nameany loss resulting therefrom.
(c) Lender may file any claim The Servicer has appointed each of Wells Fargo Bank, N.A., and take any other action in any court of law or equity which Lender determines to be appropriate for Commerce Bank, as an initial Lock-Box Account Depository under the purpose of collecting any or all Servic▇▇▇ Agreement. All funds of the Accounts; provided, however, that Lender Trust held by a Lock-Box Account Depository are and shall not be obligated in any manner to make any demand or to make any inquiry as to remain the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all property of the AccountsTrust.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Master Trust Agreement (Aegis Consumer Funding Group Inc)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) Each of Debtor’s grant the Company, the Material Subsidiaries of the Group, and WFOEs shall open a security interest dividends collection account with an Account Bank (subject to an account pledge or account control agreement) to receive all dividends, distributions, money, interests, repayment of shareholder loan, repatriation of capital or other income in respect of or pursuant to its ownership and equity interests in its direct Subsidiary(ies) (the Accounts Dividends Proceeds), provided that, unless and until a separate dividends collection account of the Company is opened pursuant to Lender; this paragraph (in any case, to be opened on or before the earlier of (i) 180 days after the Closing Date, and (ii) the date on which any dividends or distributions are paid to the Company for the first time after the Closing Date), the Debt Service Reserve Account shall be designated as the dividends collection account of such additional information and instructions concerning Lender’s rights under this the Company. Subject to Agreed Security Agreement as Lender Principles, account security shall be granted in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals respect of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall these dividends collection accounts. No Dividends Proceeds may be properly endorsed withdrawn by Debtor any such entity from the relevant dividends collection accounts other than to Lender, with recoursepay the dividends to its direct shareholders pursuant to its ownership and equity interests held by such direct shareholder or any other purposes agreed by the Majority Lenders.
(fii) Lender In respect of the Debt Service Reserve Account, the Company shall have ensure that the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf amount of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines not less than the principal amount of the Loans scheduled to be appropriaterepaid (including all accrued interest and fees) on a Repayment Date will be deposited in the Debt Service Reserve Account no later than the date falling 15 Business Days prior to that Repayment Date.
(giii) Except The Company shall use its commercially reasonable endeavours to procure that the Company, the Material Subsidiaries of the Group, and WFOEs shall:
(A) open and maintain a revenue collection account (the Revenue Collection Account) with an Account Bank;
(B) establish cash pooling arrangements with the Account Banks in relation to the Revenue Collection Accounts; and
(C) use the Account Banks as otherwise the primary account banks of the Group, provided that, the obligations of the Company and each Group Member under this paragraph are subject to (i) the relevant Account Bank (or its Affiliate) co-operating with each of the Company and each of the Group Members in opening such Revenue Collection Account and establishing the cash pooling arrangements, (ii) the terms relating to the fees, costs, commissions and expenses charged by the Account Bank (or its Affiliate), and the level of services provided by the UCC Account Bank (or its Affiliate) in relation to the opening and except for any maintenance of the following arising from Lender’s such Revenue Collection Accounts and cash pooling arrangements being market standard (or any Lender’s gross negligence or willful misconductbetter) terms, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; and (iii) settling the Revenue Collection Account and cash pooling arrangements would not interfere the business operation of the Company or any Account for less than the full amount hereof; Group Member in any respect.
(iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or The Company shall use its commercially reasonable endeavour to ensure that at the time of opening an account pursuant to this paragraph (v) y), the performance or observance aggregate balances of any or all accounts opened with such Account Bank is substantially pro rata according to the proportion of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all its commitment of the Collateral, including Term Facility to the Accountsaggregate commitments of all the Account Banks under the Term Facility.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Commitment Letter (Centurium Capital Partners 2018, L.P.)
Accounts. With On or before the first Borrowing Date, the Indenture Trustee shall establish, for the benefit of the Lenders to the extent of its interests therein as provided herein, the Disbursement Account, the Collection Account, the Reserve Account and the Residual Payments Account, which accounts shall be segregated accounts maintained at a Qualified Institution selected by the Issuer and approved by the Administrative Agent and each Funding Agent. Each such Account shall be subject to the sole dominion and control (as defined in Section 8-106 of the UCC) of the Indenture Trustee and neither the Issuer nor any Affiliate of the Issuer shall have any withdrawal rights therefrom, except as expressly permitted under this Agreement and the Residual Payments Account Control Agreement with respect to the AccountsResidual Payments Account. The Eligible Investments and funds in each such Account shall be deemed “financial assets” as defined in Section 8-102 of the UCC. In furtherance of the foregoing, the Issuer and without limiting Lender’s rights above:
(a) Lender may direct any or the Indenture Trustee agree to enter into the Account Control Agreement with respect to each such Account as of the date hereof. Subject to the further provisions of this Section 3.01, the Indenture Trustee shall, upon receipt, deposit into such Accounts all Account Debtors amounts received by it which are required to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any be deposited therein in accordance with the provisions hereof. All such amounts and all money investments made with such amounts, including all income and other property due or to become due gains from such investments, shall be held by the Indenture Trustee in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all such Accounts as part of the Accounts; Collateral as herein provided, however, that Lender shall not be obligated subject to withdrawal by the Indenture Trustee in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly accordance with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, for the purposes specified in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction provisions of, any goodsthis Agreement and, with respect to the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Residual Payments Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay subject to withdrawal by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, CFS or the warranties under any other agreement or document relating to any or all of Issuer in accordance with the Collateral, including the AccountsResidual Payments Account Control Agreement.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. (a) The Servicer shall establish and maintain the Collection Account and the Certificate Account in the name of the Trustee for the benefit of the Certificateholders and, to the extent herein provided, for the benefit of the Surety Bond Issuer. The Collection Account shall be a segregated, non-interest-bearing trust account initially established with the Trustee and maintained with the Trustee so long as (i) the deposits of the Trustee have the Required Deposit Rating or (ii) the Collection Account is maintained as a fully segregated trust account. All amounts held in the Collection Account (other than Purchase Amounts) shall be invested in Permitted Investments by the Trustee, at the written direction of the Servicer, in each case such investments maturing not later than the Deposit Date following the Collection Period in which such amounts are so invested. Purchase Amounts deposited on a Deposit Date shall not be invested. Such written direction shall certify that any such investment is authorized by this Section 14.1 and complies with the requirements of Permitted Investments as set forth in Schedule C. The Certificate Account shall be a segregated, non-interest-bearing trust account initially established with the Trustee and maintained with the Trustee for so long as (x) the deposits of the Trustee have the Required Deposit Rating or (y) the Certificate Account is maintained as a fully segregated trust account. The amounts in the Certificate Account shall not be invested. Should the deposits of the Trustee no longer have the Required Deposit Rating and the Collection Account or the Certificate Account, as applicable, shall not be maintained as a fully segregated trust account, then the Servicer shall, with the Trustee's assistance as necessary, cause the Certificate Account and/or the Collection Account to be moved, within 60 days after the occurrence of the later of the loss of the Required Deposit Rating or the cessation of such accounts being maintained as fully segregated trust accounts, to a bank or trust company organized under the laws of the United States of any state thereof, the deposits of which shall have the Required Deposit Rating.
(i) The Depositor shall establish the Reserve Account in the name of the Collateral Agent which shall be pledged to the Trustee for the benefit of the Certificateholders and the Surety Bond Issuer. The Reserve Account shall be a segregated, non-interest-bearing trust account initially established and maintained with the Trustee for so long as (x) the deposits of the Trustee have the Required Deposit Rating or (y) the Reserve Account is maintained as a fully segregated trust account. The Reserve Account shall not be property of the Trust. All amounts held in the Reserve Account shall be invested in Permitted Investments by the Collateral Agent, at the written direction of the Depositor, in each case such investments maturing not later than the Deposit Date following the Collection Period in which such amounts are so invested. Such written direction shall certify that any such investment is authorized by this Section 10.1 and comply with the requirements of Permitted Investments as set forth in Schedule C. Should the deposits of the Collateral Agent no longer have the Required Deposit Rating or the Reserve Account shall not be maintained as a fully segregated trust account, then the Depositor shall, with the Collateral Agent's assistance as necessary, cause the Reserve Account to be moved, within 60 days after the occurrence of the later of the loss of the Required Deposit Rating or the cessation of such accounts being maintained as fully segregated trust accounts, to a bank or trust company organized under the laws of the United States or any state thereof, the deposits of which shall have the Required Deposit Rating.
(ii) On the date of the issuance of the Certificates, the Depositor shall cause the Reserve Account Initial Deposit to be deposited into the Reserve Account. The Depositor hereby grants to the Collateral Agent for the benefit of the Certificateholders and the Surety Bond Issuer a security interest in and to the Reserve Account and any and all Account Property credited thereto from time to time, including, but not limited to, Permitted Investments, to secure payment of the Certificates according to their terms. Amounts held from time to time in the Reserve Account will continue to be held by the Collateral Agent for the benefit of the Certificateholders and the Surety Bond Issuer, but the Reserve Account shall not be an asset of the Trust. Funds held in the Reserve Account shall be remitted to the Depositor upon the Depositor's written request upon the termination of the Trust. By acceptance of their Certificates or interest therein and by execution and delivery of the Reimbursement Agreement by the Surety Bond Issuer, the Certificateholders and Certificate Owners and the Surety Bond Issuer, respectively, shall be deemed to have appointed [ ] as Collateral Agent. [ ] hereby accepts such appointment as Collateral Agent.
(iii) With respect to the AccountsAccount Property in respect of the Reserve Account, the Collateral Agent agrees that:
A. any Account Property that is held in deposit accounts shall be held solely in a bank with the Required Deposit Rating; and each such bank with the Required Deposit Rating shall be subject to the exclusive custody and control of the Collateral Agent, and without limiting Lender’s rights above:the Collateral Agent shall have sole signature authority with respect thereto;
B. any Account Property that constitutes Physical Property shall be delivered to the Collateral Agent in accordance with paragraph (a) Lender may direct of the definition of "Delivery" and shall be held, pending maturity or disposition, solely by the Collateral Agent, or a financial intermediary (as such term is defined in Section 8-313(4) of the Relevant UCC) acting solely for the benefit of the Certificateholders;
C. any Account Property that is a book-entry security held through the Federal Reserve System pursuant to Federal book-entry regulations shall be delivered to the Collateral Agent in accordance with paragraph (b) of the definition of "Delivery" and shall be maintained by the Collateral Agent, pending maturity or all disposition, through continued book-entry registration of such Account Debtors Property as described in such paragraph; and
D. any Account Property that is an "uncertificated security" under Article 8 of the Relevant UCC and that is not governed by clause (C) above shall be delivered to make payment directly the Collateral Agent in accordance with paragraph (c) of the definition of "Delivery" and shall be maintained by the Collateral Agent, pending maturity or disposition, through continued registration of the Collateral Agent's (or its nominee's) ownership of such security. Effective upon Delivery of any Account Property in the form of Physical Property, book-entry securities or uncertificated securities, the Collateral Agent shall be deemed to Lender or to a specified agent have purchased such Account Property for value, in good faith and without notice of Lenderany adverse claim thereto.
(biv) Lender The Depositor and the Servicer agree to take or cause to be taken such further actions, to execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments (including, without limitation, any financing statements under the Relevant UCC or this Agreement) as may demand, collect, receive and give receipts for any and all money and other property due or be determined to become due in connection with the Accountsbe necessary, in Lender’s or Debtor’s nameorder to perfect the interests created by this Section 10.1(b) and otherwise effectuate the purposes, terms and conditions of this Section 14.1(b).
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With (a) The Trustee shall, prior to the Closing Date, establish eight segregated trust accounts which shall be designated as the “Custodial Account,” the “Collection Account,” the “Payment Account,” the “Uninvested Proceeds Account,” the “Closing Date Expense Account”, the “Expense Reserve Account,” the “Hedge Termination Receipts Account” and the “Future Funding Asset Account,” respectively, identified as held in trust for the benefit of the Secured Parties. Each Account shall be a securities account (as defined in the UCC) established with the Securities Intermediary in the name of the Trustee and shall be an account to which financial assets may be credited and as to which financial assets the Securities Intermediary undertakes to treat the Trustee as entitled to exercise the rights that comprise such financial assets. All property (including without limitation cash, instruments and securities) shall be treated as financial assets. On the Closing Date, the Issuer will deposit into the Closing Date Expense Account from the gross proceeds of the offering of the Notes an initial amount which shall be sufficient to pay any outstanding initial fees and expenses of the Issuer with respect to the AccountsOffering which are not paid on the Closing Date. During the Ramp-Up Period, amounts held in the Closing Date Expense Account from time to time may be invested pursuant to written instructions from the Issuer in Eligible Investments, and without limiting Lender’s rights above:
any investment earnings therefrom shall be credited to (aany losses therefrom shall be debited to) Lender the Closing Date Expense Account. After the Effective Date, the Trustee will be required to deposit all funds remaining in the Closing Date Expense Account into the Collection Account to be treated as Principal Proceeds. The Collection Account shall be a securities account (and may be a sub-account of the Custodial Account and may be maintained on a ledger-entry basis), to which money credited to the Collection Account (and Eligible Investments in which such money may be invested from time to time, which Eligible Investments shall be acquired and held pursuant to the terms of Section 6.16 hereof) shall be credited. The Issuer, or the Collateral Manager on its behalf, may direct that all amounts due to the Issuer in respect of any Collateral Interests serviced by the CDO Servicer be deposited directly into the Collection Account, in which case if the CDO Servicer is entitled to any of such funds pursuant to the terms of the CDO Servicing Agreement (i.e. to pay its fees and expenses) then, upon written request of the CDO Servicer, the Trustee shall withdraw such funds from the Collection Account and remit them to the CDO Servicer. All Collateral Interests shall be credited to the Custodial Account. All Distributions and any net proceeds from the sale or disposition of a Collateral Interest received by the Trustee shall be immediately deposited into the Collection Account. Subject to Section 10.2(d), all such property, together with any securities in which funds included in such property are or will be invested or reinvested during the term of this Indenture, and any income or other gain realized from such investments, and any Interest Advances shall be held by the Trustee in the Payment Account Debtors as part of the Collateral subject to make payment directly to Lender disbursement and withdrawal as provided in this Section 10.2. By Issuer Order (which may be in the form of standing instructions), the Issuer shall at all times direct the Trustee to, and, upon receipt of such Issuer Order, the Trustee shall, invest all funds received into the Collection Account during a Due Period, and amounts received in prior Due Periods and retained in the Collection Account, as so directed in Eligible Investments having Stated Maturities no later than the Business Day immediately preceding the next Payment Date. The Trustee, within one Business Day after receipt of any Distribution or other proceeds which is not Cash, shall so notify the Issuer and the Issuer shall, within five (5) Business Days after receipt of such notice from the Trustee, sell such Distribution or other proceeds for Cash in an arm’s length transaction to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity Person which Lender determines to be appropriate for the purpose of collecting any or all is not an Affiliate of the AccountsIssuer or the Collateral Manager and deposit the proceeds thereof in the Collection Account for investment pursuant to this Section 10.2; provided, however, that Lender shall the Issuer need not be obligated in any manner to make any demand sell such Distributions or to make any inquiry as other proceeds if it delivers an Officer’s certificate to the nature Trustee certifying that such Distributions or sufficiency other proceeds constitute Collateral Interests or Eligible Investments. In addition, the Issuer (or the Collateral Manager on the Issuer’s behalf) may, but under no circumstances shall be required to, credit such monies to the Collection Account as it deems, in its sole discretion, to be advisable in the event that, but for such action, an Event of any payment received by itDefault would occur. Except as provided in Sections 9.2 and 11.1, the only permitted withdrawal from or application of funds on deposit in, or otherwise to present or file any claim or take any action the credit of, the Payment Account shall be to collect or enforce pay the payment of any or all interest on and the principal of the AccountsNotes in accordance with their terms and the provisions of this Indenture, amounts due to the Advancing Agent or the Trustee, as applicable, in connection with the reimbursement of Interest Advances and interest thereon, the Administrative Expenses and other amounts specified therein, all in accordance with the Priority of Payments. All monies, instruments, investment property or other property credited to the Collection Account and the Payment Account pursuant to this Indenture, and all Collateral Interests and other property credited to the Custodial Account, shall be held by the Trustee as part of the Collateral and shall be applied in the manner set forth herein.
(db) Debtor, at Lender’s request, shall, Upon Issuer Order and Lender, at Lender’s option may, give notice in form acceptable to Lender, subject to the Account Debtors: requirements of Sections 11.1(a) and (ib) and 12.2 hereof, during the Reinvestment Period only, all or a portion of Debtor’s grant of a security interest the Principal Proceeds (including Sale Proceeds) available in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which Collection Account shall be properly endorsed released from the Collection Account and applied by Debtor the Trustee in accordance with such Issuer Order in payment for Additional Collateral Interests purchased in accordance with Section 12.2 hereof and for costs and expenses related to Lender, with recoursesuch purchases.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(hc) If for any reason Debtor receives any payment in connection with any of the Accounts following prior to the occurrence and during the continuance of an Event of Default, Debtor: the Issuer shall not have given any investment directions pursuant to Section 10.2(a), the Trustee shall seek instructions from the Issuer within three (3) Business Days after transfer of such funds to the Collection Account. If the Trustee does not thereupon receive written instructions from the Issuer within five (5) Business Days after transfer of such funds to the Collection Account, it shall invest and reinvest the funds held in the Collection Account, as fully as practicable, but only in Eligible Investments described in item (ii) of the definition of Eligible Investments maturing no later than the Business Day immediately preceding the next Payment Date. If after the occurrence of an Event of Default, the Issuer shall not have given investment directions to the Trustee pursuant to Section 10.2(a) for three (3) consecutive days, the Trustee shall invest and reinvest such Monies as fully as practicable in Eligible Investments described in item (ii) of the definition of Eligible Investments maturing not later than the Business Day immediately preceding the next Payment Date. All interest and other income from such investments shall be deposited in the Collection Account, any gain realized from such investments shall be credited to the Collection Account, and any loss resulting from such investments shall be charged to the Collection Account. The Trustee shall not in any way be held liable by reason of any insufficiency of such Collection Account resulting from any loss relating to any such investment.
(d) The Note Valuation Report shall constitute direction to the Trustee to transfer to the Payment Account, for application pursuant to Sections 11.1(a) and (b) hereof no later than the Business Day prior to each Payment Date, all Interest Advances made to or by the Trustee pursuant to Section 10.3 and any amounts then held in the Collection Account other than proceeds received after the end of the Due Period with respect to such Payment Date. Notwithstanding the foregoing and subject to Sections 11.1(a) and 11.1(b), prior to making any transfer pursuant to this Section 10.2(e), the Trustee may withdraw funds on deposit in the Collection Account, on any Payment Date to reimburse the Advancing Agent or the Trustee, as applicable for unreimbursed Interest Advances and interest accrued and payable thereon pursuant to Section 10.3.
(e) The Trustee will deposit all Uninvested Proceeds (other than the organizational and structuring fees and expenses of the Co-Issuers (including, without limitation, legal fees and expenses of counsel) and the expenses of offering the Notes on such date) into the Uninvested Proceeds Account. On or prior to the Effective Date, the Collateral Manager on behalf of the Issuer may direct the Trustee to, and upon such direction the Trustee will, apply funds in the Uninvested Proceeds Account to purchase Additional Collateral Interests, and prior to the application of any such amounts to the purchase of Additional Collateral Interests such funds will be invested in Eligible Investments, as directed by the Collateral Manager. The Trustee will transfer any amount remaining on deposit in the Uninvested Proceeds Account on the Effective Date to the Collection Account to be treated as Principal Proceeds, at the direction of the Collateral Manager, on the first Payment Date following the Effective Date and distributed in accordance with the Priority of Payments.
(f) The Trustee will deposit into the Expense Reserve Account, on the Closing Date, an amount equal to U.S.$25,000, and on each Payment Date will deposit additional amounts in accordance with the Priority of Payments. The Trustee may, from time to time and at any time, withdraw amounts from the Expense Reserve Account to pay accrued and unpaid Administrative Expenses of the Co-Issuers as directed by the Collateral Manager. All amounts remaining on deposit in the Expense Reserve Account at the time when substantially all of the Issuer’s assets have been sold or otherwise disposed of will be deposited by the Trustee into the Collection Account for distribution as Interest Proceeds in accordance with the Priority of Payments on the immediately succeeding Payment Date.
(g) With respect to any Future Funding Asset with respect to which the Seller of such Future Funding Asset retains the obligation to make any future funding advance or future payment, the Seller of such Future Funding Asset will be required to deposit into the Future Funding Asset Account the amount of funds equal to the combined aggregate principal amounts of the future funding obligation under such Future Funding Asset less the amount of any amount that has been previously funded. As directed by the applicable Seller in writing and in accordance with this Indenture, amounts on deposit in the Future Funding Asset Account will be invested in overnight funds that are Eligible Investments. On the Business Day immediately preceding each Payment Date, the income received on amounts contained in the Future Funding Asset Account during the related Due Period will be withdrawn from such account and paid to the applicable Seller (and the applicable Seller shall be required to deposit into the Future Funding Asset Account the amount of any losses incurred from such investment). Any funds in the Future Funding Asset Account will be available solely to (i) shall immediately pay or deliver secure the related Seller’s agreement to indemnify the Issuer for any losses incurred by the Issuer as a result of such payment Seller failing to Lender make any required future advance in the original form in which received by Debtor; respect of a Future Funding Asset, (ii) shall endorse at the direction of the Collateral Manager (but subject to Lendera Servicer Override), with recourse, all checks, drafts, money orders, notes, fund any future funding requirements and other instruments or documents representing such payment; (iii) cover any future advance obligations on the related Future Funding Assets to the extent of the related Seller’s failure to make such required future advance; provided, however, that the excess of (a) the amounts on deposit in the Future Funding Asset Account over (b) the combined aggregate principal amounts of the unfunded commitments under any Future Funding Assets included in the Collateral shall not commingle be paid to the related Seller by the Trustee upon the direction of the Collateral Manager (but subject to a Servicer Override). Upon (i) the sale or maturity of a Future Funding Asset, (ii) the funding of the Future Funding Asset by the applicable Seller or (iii) the occurrence of an event of default with respect to a Future Funding Asset or any other event or circumstance which, in each case, results in the irrevocable reduction of the unfunded commitments under such payment Future Funding Asset, any funds in the Future Funding Asset Account in excess of the amount needed to cover any future funding obligations on all remaining future Funding Assets shall be paid, at the direction of the Collateral Manager (but subject to a Servicer Override), to the related Seller. Notwithstanding anything herein to the contrary, the Trustee shall, at the direction of the Collateral Manager (but subject to a Servicer Override), fund the future funding obligations of a Future Funding Asset from amounts on deposit in the Future Funding Asset Account provided that the amounts remaining in the Future Funding Asset Account after giving effect to such funding is at least equal to the combined aggregate principal amounts of the unfunded commitments under any Future Funding Assets. With respect to any Future Funding Asset with respect to which the Issuer has assumed the obligation to make any future funding advance or future payment, the Trustee acting at the direction of Debtor’s other the Collateral Manager shall deposit Principal Proceeds or Uninvested Proceeds into the Future Funding Asset Account the amount of funds or property; and (iv) shall hold equal to the combined aggregate principal amounts of the future funding obligation under such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to LenderFuture Funding Asset less the amount of any amount that has been previously funded.
Appears in 1 contract
Sources: Indenture (CBRE Realty Finance Inc)
Accounts. With (a) On or prior to the date hereof, the Indenture Trustee shall establish in its name, as Indenture Trustee, the Reimbursement Account, the Note Payment Account, the Reserve Account and the Funding Account. Except as provided in this Indenture, the Indenture Trustee, in accordance with the terms of this Indenture, shall have exclusive control and sole right of withdrawal with respect to the Accounts. Funds in the Accounts shall not be commingled with any other monies. All monies deposited from time to time in the Accounts (including any securities or instruments in which such monies are invested) shall be held by and under the control of the Indenture Trustee in the Accounts for the benefit of the Secured Parties and the Issuer as herein provided. All amounts received by the Indenture Trustee, including, without limitation, amounts received from the REMIC Trustees in respect of the Aggregate Receivables and without limiting Lender’s rights above:
Repurchase Prices received from the Seller, shall be deposited into the Reimbursement Account within one (a1) Lender may direct any or all Business Day following receipt by the Indenture Trustee and shall be applied in accordance with the terms of this Indenture. In addition, the Issuer may, from time to time, deposit additional funds into the Reimbursement Account Debtors to make payment directly to Lender or to a specified agent of Lenderbe applied for the purposes set forth herein.
(b) Lender All of the funds on deposit in the Accounts may demandbe invested and reinvested by the Indenture Trustee at the written direction of the Agent in one or more Permitted Investments, collectsubject to the following requirements:
(i) such Permitted Investments shall mature not later than one Business Day prior to the next Payment Date or Funding Date whichever is sooner (except that if such Permitted Investment is an obligation of the Indenture Trustee, receive and give receipts for any and all money and other property due such Permitted Investment shall not mature later than the next Payment Date or to become due in connection Funding Date whichever is sooner);
(ii) the securities purchased with the monies in the Accounts shall be deemed to be funds deposited in the related Accounts;
(iii) each such Permitted Investment shall be made in the name of the Indenture Trustee (in its capacity as such) or in the name of a nominee of the Indenture Trustee under the Indenture Trustee's complete and exclusive dominion and control (or, if applicable law provides for perfection of pledges of an instrument not evidenced by a certificate or other instrument through registration of such pledge on books maintained by or on behalf of the issuer of such investment, a Permitted Investment may be made in Lender’s such instrument notwithstanding that such instrument is not under the dominion and control of the Indenture Trustee, provided that such pledge is so registered);
(iv) the Indenture Trustee shall have the sole control over such investment, the income thereon and the proceeds thereof;
(v) other than the investments described in the second parenthetical phrase in clause (iii) above, any certificate or Debtor’s nameother instrument evidencing such investment shall be delivered directly to the Indenture Trustee or its agent; and
(vi) the proceeds of each investment shall be remitted by the purchaser thereof directly to the Indenture Trustee for deposit in the related Account, subject to withdrawal by the Indenture Trustee as provided herein. In the absence of written direction from the Issuer, funds on deposit in the Accounts shall be invested by the Indenture Trustee in Permitted Investments described in clause (v) of the definition thereof. All amounts earned on Permitted Investments shall be deposited into the Note Payment Account on each Payment Date and shall be included in the Available Amount for such Payment Date.
(c) Lender may file any claim and take any other action The REMIC Servicer shall cause all collections in any court respect of law or equity which Lender determines the Assets included in each REMIC Trust to be appropriate deposited into the related Certificate Account pursuant to the related REMIC Pooling Agreement, not later than two Business Days following receipt by the REMIC Servicer or the REMIC Sub-Servicer. The REMIC Servicer shall cause daily automated clearing house ("ACH") debits pursuant to which all P&I Advance Reimbursement Amounts are transferred to the Reimbursement Account from the Certificate Accounts maintained pursuant to the REMIC Pooling Agreements within one (1) Business Day after deposit into the related Certificate Account. All P&I Advance Reimbursement Amounts received from the REMIC Trusts shall be deposited into the Reimbursement Account on a daily basis. In addition, the REMIC Servicer shall cause any Extension Advances to be treated as P&I Advance Reimbursement Amounts up to the Receivables Balance of the Aggregate Receivables with respect to the Assets for which such Extension Advances are being made. Any such portion of an Extension Advance shall be deposited in the Reimbursement Account on a daily basis, in each case within one (1) Business Day after deposit into the related Certificate Account. Such deposit shall constitute reimbursement of the related Aggregate Receivables with respect to the related Assets and the contractual right to receive reimbursement for the purpose of collecting any or all of the Accounts; provided, however, that Lender Extension Advances shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountsconstitute Collateral.
(d) DebtorOn any Business Day during the Funding Period, at Lender’s requestthe Issuer may deliver, shall, and Lender, at Lender’s option may, give notice in form acceptable or cause to Lenderbe delivered, to the Indenture Trustee, the Agent and the Noteholders a report in substantially the form of Exhibit E hereto demonstrating that an Excess Amount exists (an "Excess Amount Payment Report"), demonstrating that the Collateral Coverage Requirement is satisfied on such date, and stating the amount of the Excess Amount as of such date, the amount of funds on deposit in the Reimbursement Account Debtors: (i) on such date, the amount of Debtor’s grant the Expense Reserve for the next upcoming Payment Date, and the amount to be paid to the Issuer pursuant to this Section 2.09(d). The Indenture Trustee shall be entitled to rely conclusively on any such Excess Amount Payment Report. The Excess Amount Payment Report on any Funding Date may be part of the related Funding Date Report, and no report separate from the Funding Date Report shall be required for an Excess Amount payment that is to be made on a Funding Date. If the Funding Date Report states that the Collateral Coverage Requirement is satisfied, then the Indenture Trustee shall withdraw from the Reimbursement Account, and shall remit to the Issuer, cash in an amount requested by the Issuer up to the Excess Amount. For purposes of this Section 2.09(d), to the extent the Indenture Trustee receives P&I Advance Reimbursement Amounts later than 2:00 PM Eastern time on a Business Day, such funds shall be deemed to have been received on the following Business Day. Notwithstanding the foregoing, no payment in respect of the Excess Amount shall be made during the period from the end of a security interest Collection Period through the Payment Date occurring in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTfollowing month.
(e) Debtor shallUpon the satisfaction and discharge of this Indenture pursuant to Section 3.01 of this Indenture, promptly following Lender’s request, deliver the Indenture Trustee shall pay to Lender the originals of Issuer all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly withif any, and give releases on behalf of Debtor to Account Debtors, upon such terms held by it remaining as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any part of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsTrust Estate.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Indenture (Oakwood Homes Corp)
Accounts. With respect (a) Treasurer authorizes Custodian to establish and maintain on its books, pursuant to the Accountsterms of this Agreement, and without limiting Lender’s rights abovethe following accounts:
(ai) Lender Any account (“Custody Account”) in the name of Treasurer for Financial Assets, which may direct be received by or on behalf of Custodian or its Subcustodian for the account of Treasurer, including as an Entitlement Holder;
(ii) Any account (“Cash Account”) and, collectively with the Custody Account, (“Accounts”) in the name of Treasurer for any Cash in any currency received by or on behalf of Custodian for the account of Treasurer. The Custody Account will be a custody account for the receipt, safekeeping and maintenance of Securities, and the Cash Account will be a current account for Cash. Custodian is responsible for the recording and safekeeping of all Account Debtors Cash and Financial Assets deposited by Treasurer. Custodian further agrees to make payment pay over or transfer any Financial Asset or Cash held by Custodian for Treasurer on the Instruction of an Authorized Person. Notwithstanding paragraph (ii) of this Section 1.3(a), Cash held in respect of those markets where Treasurer is required to have a cash account in its own name held directly with the relevant Subcustodian or a Securities Depository shall be held in that manner and shall not be part of the Cash Account. Custodian’s services with respect to Lender or to a specified agent of Lendersuch Cash Accounts shall be governed by this Agreement.
(b) Lender At the request of Treasurer, additional Accounts may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest opened in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallfuture, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor subject to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf terms of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) this Agreement. Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconductin Instructions acceptable to Custodian, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results all Cash held in the loss or impairment of Cash Account will be deposited during the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating period it is credited to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: in one (i1) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.more deposit accounts at Custodian
Appears in 1 contract
Sources: Global Custody Agreement
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or prior to the date hereof, the Borrower shall cause to be established one or more accounts with the Depositary pursuant to the Depository Agreement in the name of the Borrower. The Borrower shall cause the Depositary to create a Collection Account, a Liquidity Reserve Account, a Maintenance Reserve Account, a Security Deposits Account, an Operating Expenses Account, a Modifications and Improvements Account, a Net Cash Proceeds Account and a Substitution Account, in each case in accordance with the terms of the Depository Agreement. The Agent shall cause the Depositary to create a Prefunding Account in accordance with the terms of the Depository Agreement. The Borrower shall notify (and the Borrower hereby authorizes the Collateral Agent so to notify), in each case following the occurrence and during the continuation of an Event of Default, each Lessee and other account debtors of the Borrower in writing that each Lease and other accounts receivable of the Borrowers has been assigned to the Collateral Agent under the Loan Documents for the benefit of the Protected Parties. The Borrower also shall notify and instruct each Lessee that all payments due or to become due under each Portfolio Lease (except for Excepted Payments (which shall be payable to the Persons for whose benefit any such payment is made)) or all Account Debtors otherwise in respect of amounts and other receivables of the Borrower are to make payment be made directly to Lender or to a specified agent of Lenderthe Customer Payments Account.
(b) Lender Any amounts from time to time held in the Collection Account, the Maintenance Reserve Account, the Modifications and Improvements Account, Security Deposits Account, Operating Expenses Account, the Liquidity Reserve Account and the Substitution Account may demand, collect, receive and give receipts for any and all money and other property due or be invested in Cash Equivalents (subject to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all provisions of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) DebtorDepository Agreement), at Lenderthe Borrower’s request, shall, and Lender, at Lender’s option may, give notice risk as directed in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided writing by the UCC and except for any of Borrower, until the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible application thereof in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection accordance with any of the Accounts following this Agreement. Upon the occurrence and during the continuance of an Event of Default, Debtor: the Agent may direct by notice the Depositary to pay to the Agent the amount specified in such notice from the Account(s) specified in such notice, and the Agent shall apply such amounts received from the Depositary to the repayment of the Obligations in accordance with the applicable provisions of Section 2.07(c) .
(c) Subject to the provisions of the Depository Agreement, the Agent may at any time and from time to time in its sole discretion (and, to the extent such application would have the effect of curing a Default under Section 9.01(a) hereof or if the Loans have become or been declared immediately due and payable pursuant to Section 9.02 , shall) instruct the Depositary to pay into the Collection Account the amounts on deposit in the Liquidity Reserve Account if and to the extent the amounts in the Collection Account on any Settlement Date would be insufficient to pay in full the items described in clauses first , second , third , fourth and fifth of Section 2.07(c)(i) or clauses first , second , third , fourth and fifth of Section 2.07(c)(ii) , as the case may be; provided that, so long as no Event of Default shall have occurred and then be continuing, (i) the Agent shall immediately pay or deliver have consulted with the Borrower prior to giving such payment to Lender in the original form in which received by Debtor; instruction and (ii) if and to the extent determined by the Agent and the Borrower that a reserve is required to be held in the Accounts in respect of anticipated claims by a Lessee for payment of deposit, maintenance reserves or insurance or indemnity payments, such reserve shall endorse be retained in the Accounts.
(d) The Borrower hereby agrees to Lender, with recourse, endeavor to transfer all checks, drafts, money orders, notesAvailable Collections from the Customer Payments Account to the Collections Account within three (3) Business Days of deposit in the Customer Payments Account but in no event later than six (6) Business Days of deposit of any Available Collections in the Customer Payments Account, and other instruments shall provide timely written notice thereof (which notice may be made by facsimile or documents representing such payment; (iiielectronic mail) shall not commingle such payment to the Agent, in each case in accordance with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderthe Customer Collections Account Administration Agreement.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any The Trustee shall establish the Collection Account and the Certificate Account in the name of the Trustee for the benefit of the Certificateholders. The Collection Account and the Certificate Account shall be segregated trust accounts established with the trust department of the Trustee. The Servicer shall establish the Lock-Box Account pursuant to the Servicing Agreement. The Lock-Box Account shall be a non-interest bearing account established with a Lock-Box Account Depository, which shall at all times be an Eligible Institution, by the Servicer for the sole benefit of the Trust and other holders of retail installment sales contracts originated by Aegis Finance or all Account Debtors to make payment directly to Lender or to a specified agent its Affiliates. All of Lenderthe foregoing Accounts shall be Eligible Accounts.
(b) Lender may demandAmounts held in the Collection Account and the Certificate Account shall be invested by the Trustee, collectupon the written direction of the Seller, receive in Eligible Investments. Any such investment in the Certificate Account shall mature no later than (i) one Business Day before the Distribution Date next succeeding the date of investment or, (ii) in the case of money market fund investments, on such Distribution Date. Any such investment in the Collection Account shall mature not later than two Business Days before such Distribution Date. Any written investment direction by the Seller shall certify that any such investment is authorized by this Section 5.01. The Trustee shall have no authority to sell or otherwise dispose of Eligible Investments attributable to funds held in the Certificate Account or the Collection Account prior to their respective maturity dates. Interest and give receipts earnings on investments of funds in any Account shall be credited to and all losses borne by the Account with respect to which they were derived. All accounts with the Trustee must be trust accounts subject to regulations substantially similar to 12 C.F.R. SECS 9.10(b). The Trustee shall not have any responsibility or liability for any and all money and other property due investment of moneys at the direction of the Seller or to become due in connection with the Accounts, in Lender’s or Debtor’s nameany loss resulting therefrom.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for The Servicer has appointed ▇▇▇▇▇ Fargo Bank, N.A., as the purpose of collecting any or all initial Lock-Box Account Depository under the Servicing Agreement. All funds of the Accounts; provided, however, that Lender Trust held by a Lock-Box Account Depository are and shall not be obligated in any manner to make any demand or to make any inquiry as to remain the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all property of the AccountsTrust.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Aegis Consumer Funding Group Inc)
Accounts. With respect The Agent will at all times maintain the Collection Account and the Investment Account in the name of the Agent and the Agent shall have exclusive control of, and a valid, perfected and first priority security interest in, such accounts. The Seller and the Servicers will at all times remit all Collections to the AccountsCollection Account within three Business Days after receipt thereof, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors for application as provided in this Section, provided that each Servicer shall cause Collections from the proceeds of a sale of an Origination Home to make payment be made directly to Lender or the Collection Account and, to a specified agent of Lender.
effect the same (b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accountscommencing, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court the case of law or equity which Lender determines Collections related to be appropriate for Receivables originated by Executive Relo, no later than March 31, 2005), the purpose of collecting any or all of the Accounts; provided, however, that Lender related Servicer shall not be obligated in any manner to make any demand or to make any inquiry as give written direction to the nature or sufficiency of any payment received by it, or applicable Origination Home Closing Agent to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, send such proceeds to the Account Debtors: Collection Account. Prior to March 31, 2005, Collections relating to Receivables originated by Executive Relo may be sent to the BofA Box/Account, provided that (i) no checks received by BofA shall be deposited, but shall instead be sent in the form received to the Agent for deposit in the Collection Account, (ii) all amounts deposited to the BofA Box/Account by wire transfer shall be remitted to the Agent by BofA no later than the Business Day following BofA’s receipt thereof, and (iii) no later than January 29, 2005 BofA, Executive Relo and the Agent shall have entered into a Lock-Box Agreement. No withdrawals, payments or transfers of Debtor’s grant funds from the Collection Account, the BofA Box/Account or the Investment Account shall be made except upon the written direction of the Agent in accordance with this Section. The amounts held in the Collection Account may be transferred to the Investment Account and invested and reinvested by the Agent solely in Permitted Investments credited to the Investment Account selected by the Seller in a written notice to the Agent (unless a Termination Event exists, in which case such transfer and investment shall be at the discretion of, and in Permitted Investments selected by, the Agent). Yield on such investments shall be deposited in the Investment Account and allocated in accordance with this Section. To the extent that the Collection Account and the Investment Account constitute “Securities Accounts” as defined in Section 8.501(a) of the UCC, LaSalle will act as Securities Intermediary and will treat the Agent, for whom the Securities Intermediary maintains the Collection Account and the Investment Account, as entitled to exercise the rights that comprise the property, including all Security Entitlements, Securities, Financial Assets, Investment Property and Instruments (each as defined in the UCC). In the event that the Collection Account and the Investment Account are not considered to be a “Securities Accounts” under applicable law, the Collection Account and the Investment Account shall be deemed to be a “deposit accounts” (as defined in the UCC) to the extent a security interest can be granted and perfected under the UCC in the Accounts Collection Account and the Investment Account as deposit accounts, which the Agent shall maintain with LaSalle acting not as a securities intermediary but as a “bank” (as defined in the UCC). The Agent, acting on behalf of the Purchasers, shall be deemed to Lender; be the customer of the LaSalle for purposes of the Collection Account and the Investment Account and as such shall be entitled to all the rights that customers of banks have under applicable law with respect to deposit accounts, including the right to withdraw funds from, or close, the Collection Account and the Investment Account (which rights shall be exercised in accordance with the terms of this Agreement). LaSalle shall credit the Collection Account and the Investment Account with all receipts of interest, dividends, and other income received on or in respect of the property held in the each of the respective accounts. LaSalle agrees that its jurisdiction is the State of Illinois for all purposes of the UCC. LaSalle hereby (i) subordinates to the interests of the Agent and the Purchasers any security interest, lien, or right of recoupment or setoff that LaSalle may have in its individual capacity, now or in the future, against the Collection Account and the Investment Account, and (ii) agrees that it will not exercise any right in respect of such additional information security interest or lien or any right of recoupment or setoff until the interests of the Agent and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts Purchasers in the same form as received by DebtorCollection Account and the Investment Account are terminated, each of which shall be properly endorsed by Debtor except that LaSalle is permitted to Lender, with recourse.
(f) Lender shall have charge the right to settle, accept reduced amounts, adjust disputes Collection Account and claims directly with, and give releases on behalf of Debtor to the Investment Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy infor its fees and charges relating to such accounts and services related to such accounts and the Transaction Documents, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; and (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Defaultcheck or wire transfer deposited into either such account or other credit to either such account if such check, Debtor: (i) shall immediately pay wire transfer or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lendercredit is subsequently returned unpaid.
Appears in 1 contract
Accounts. With The Borrower shall procure and maintain that the Peso Trust Account, the US Dollar Trust Drydock Reserve Account, and US Dollar Trust Retention Account. The Obligors shall procure that all earnings from all Third Party Charters that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) are to be paid into the Peso Trust Account, immediately converted into Dollars (as required pursuant to the terms of the Guarantee, Administration and Source of Payment Trust Agreement) and immediately thereafter deposited into the US Dollar Trust Earnings Account. The Obligors shall procure that all Drydock Reserve Amounts, with respect to all Relevant Vessels that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the US Dollar Trust Drydock Reserve Account and that all Retention Amounts, with respect to all Relevant Vessels that are employed in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the US Dollar Trust Retention Account from the US Dollar Trust Earnings Account pursuant to Section 7.5. The Borrower shall maintain the Earnings Accounts, Drydock Reserve Account and without limiting Lender’s rights above:
(a) Lender may direct any or all Retention Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos). Each Obligor shall procure that all money earnings from all Relevant Vessels that are employed in trades other than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos) are to be paid into the Earnings Account of such Obligor. Each Obligor shall procure that all Drydock Reserve Amounts, with respect to all Relevant Vessels that are employed in trades other property due or than in Mexico under the Mexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), will be paid into the Drydock Reserve Account and that all Retention Amounts, with respect to become due all Relevant Vessels that are employed in connection with trades other than in Mexico under the AccountsMexican Navigation and Maritime Commerce Law (Ley de Navegación y Comercio Marítimos), in Lender’s or Debtor’s name.
(c) Lender may file any claim will be paid into the Retention Account from the Earnings Account pursuant to Section 7.5. Upon establishing the Earnings Account, the Drydock Reserve Account and take the Retention Account, the Borrower shall deliver to the Facility Agent the Account Pledge Agreements and any other action such pledge, assignment or security agreement as the Facility Agent shall require in any court order to grant a valid, perfected security interest in the aforementioned Accounts in favor of law or equity which Lender determines to the Collateral Agent. All monies on deposit in the Peso Trust Account, US Dollar Trust Earnings Account, the US Dollar Trust Drydock Reserve Account, the US Dollar Trust Retention Account, the Earnings Account, the Drydock Reserve Account and the Retention Account shall be appropriate collateral security for the purpose payment and performance by the relevant Obligor of collecting any or all their obligations hereunder, under the Note, and under the Security Documents, and each of the Accounts; providedObligors, howeverby its execution of this Agreement, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as hereby pledges, assigns and grants to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of Collateral Agent a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recoursemonies.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Term Loan Credit Facility Agreement (SEACOR Marine Holdings Inc.)
Accounts. With (a) Unless otherwise specified in the UTI Supplement, the Titling Trustee will establish and maintain with respect to the Accounts, Undivided Trust Interest a Lease Funding Account satisfying the definition of an Eligible Account. The Lease Funding Account shall be established and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due maintained in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all name of the AccountsTitling Trustee on behalf of the UTI Sub-Trust. None of the Grantor, any Beneficiary or, subject to Section 7.02(c), the holder or pledgee of any UTI Certificate or SUBI Certificate shall have any right to draw on the Lease Funding Account without the express written consent of the Titling Trustee; provided, however, that Lender the Titling Trustee, with the express written consent of the related UTI Beneficiary, shall so consent to the extent provided for in the documentation relating to any Securitized Financing of such UTI Certificate or SUBI Certificate. The Lease Funding Account shall only contain funds relating to UTI Assets.
(b) For so long as the Monthly Remittance Conditions are satisfied, the Servicer shall not be obligated required to remit to the Lease Funding Account collections in respect of any Titling Trust Assets allocable to the Lease Funding Account on a daily basis but shall be entitled to retain such collections, without segregation from its other funds, until the Business Day preceding the date identified as a "Distribution Date" in the related UTI Supplement, at which time the Servicer shall so remit all such collections in immediately available funds; provided that (i) investments on which the Trust Agent is the obligor (including repurchase agreements as to which it, in its commercial capacity, is liable as principal), may mature on the Distribution Date, and (ii) investments made of collections on deposit in a SUBI Collection Account in respect of the related Contracts and Leased Vehicles may mature on such dates as specified by the Titling Trustee at the Servicer's direction so as to maintain the availability of sufficient cash to make the payments described in any manner SUBI Supplement or related SUBI Servicing Supplement. Notwithstanding the foregoing, commencing with the first day of the first period identified as a "Collection Period" in the related UTI Supplement or SUBI Supplement, as the case may be, that begins at least two Business Days after the day on which any Monthly Remittance Conditions cease to make any demand be satisfied and for so long as the Monthly Remittance Conditions are not satisfied, all collections in respect of the UTI Assets or to make any inquiry the related SUBI Assets, as applicable, then held by the Servicer shall be immediately so deposited and all such future collections shall be so remitted by the Servicer to the nature appropriate account in accordance with this Agreement or sufficiency the related SUBI Servicing Supplement, as applicable, on a daily basis within two Business Days after receipt thereof. Each SUBI Servicing Supplement shall also provide (i) the terms on which any other funds received by any Servicer, including funds transferred from any of the SUBI Collection Accounts to the extent of (1) the net investment value (as recorded on the books of the Titling Trust) of any payment Contracts and Leased Vehicles allocated to a SUBI in a Trust Asset Transfer, (2) reimbursement of any Servicer Advances provided for in any Securitized Financing with respect to such SUBI or (3) funding for such SUBI's share of any allocable Titling Trust Expenses will be deposited by the Servicer into the Lease Funding Account (or transferred directly to the Servicer, Grantor or UTI Beneficiary directly, as appropriate) and (ii)whether and under what circumstances any other funds received by itthe Servicer with respect to a SUBI Asset, including income with respect to any investment made in any SUBI Account, shall be deposited by the Servicer into an appropriate SUBI Account.
(c) Except as otherwise provided in Section 7.03, a UTI Supplement or a SUBI Supplement, all Titling Trust Expenses shall be paid out of the Lease Funding Account or from monies held by the Servicer and allocable thereto or distributable in respect thereof, including: (i) any reimbursement due to present the Servicer for payments from its own operating accounts in order to fund (A) amounts due to Dealers in payment for the assignment to the Titling Trustee of Contracts and Leased Vehicles occurring prior to the Titling Trustee's notice to the Servicer to cease acquiring Contracts and Leased Vehicles on behalf of the Titling Trustee given pursuant to Section 7.02(c)(ii) and (B) any other Advances made by the Servicer with the consent of the Titling Trustee (to be given at the direction of the UTI Beneficiary or file any claim or take any action to collect or enforce in accordance with the payment terms of any Securitized Financing), with respect to any Contract or all Leased Vehicle, (ii) Servicer fees (and expenses, if any, not covered by the Servicer fee under any SUBI Servicing Supplement), (iii) Titling Trustee fees and expenses and (iv) other Titling Trust Expenses, if any; provided, however, that, to the extent that any Liability of the AccountsTitling Trustee or any Beneficiary is incurred in respect of Affected Trust Assets allocated to one or more Sub-Trusts, then such Liability shall be borne in accordance with Section 3.04, and the Titling Trustee, at the direction of the Servicer, shall transfer periodically from the related SUBI Collection Accounts to the Lease Funding Account each Sub-Trust's appropriate share of such aggregate Liabilities of the Titling Trust. Prior to the funding of the Lease Funding Account from collections on outstanding Contracts or otherwise, the UTI Beneficiary will advance monies to fund the origination of Contracts as described in the UTI Supplement. The UTI Supplement or any SUBI Supplement may provide that all or any portion of the collections on the related UTI Assets or SUBI Assets will be deposited in the Lease Funding Account or the related SUBI Lease Funding Account for a period of time specified therein. Prior to the creation of a SUBI, the expenses of the Titling Trust will be advanced by the UTI Beneficiary or funded from collections on the Contracts in the UTI Portfolio, as more fully described in the UTI Supplement. Thereafter, during any period during which there are no monies on deposit in the Lease Funding Account, expenses of the Titling Trust will be advanced by the UTI Beneficiary as and to the extent provided in the UTI Supplement and each SUBI Supplement.
(d) DebtorAll or a portion of the funds deposited into the Lease Funding Account shall be separately invested by the Titling Trustee from time to time at the direction of the UTI Beneficiary or its designee in any of the Permitted Investments; provided, at Lender’s requesthowever, that should the terms of any Securitized Financing impose any more stringent limits on the types or tenors of permitted investments in the Lease Funding Account than are provided for in the definition of Permitted Investments, such limits shall apply thereto for the period specified in the related Transaction Documents. The Servicer is hereby made the designee of the UTI Beneficiary for such purpose. All income, gain or loss from investment of monies in the Lease Funding Account shall, unless otherwise specified in the Transaction Documents with respect to any Securitized Financing, be for the account of the UTI Beneficiary; provided that each such investment shall be made in the name of the Titling Trustee, its nominee or its Financial Intermediary. If at any time the relevant Beneficiary or its designee shall not have given the Titling Trustee a timely investment directive with respect to any account, the Titling Trustee shall invest and Lender, at Lender’s option may, give notice reinvest any monies in form acceptable to Lender, to such account(s) in a mutual fund offered by the Account Debtors: Trust Agent or an Affiliate thereof meeting the requirements of clause (i) of Debtor’s grant the definition of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recoursePermitted Investments.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Servicer shall, prior to the Closing Date, cause to be established and maintained an Eligible Deposit Account in the name "The Chase Manhattan Bank as Indenture Trustee, as secured party from USAA Auto Owner Trust 2001-1", initially at the corporate trust department of the Indenture Trustee, which shall be designated as the "Collection Account". The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided, that the Servicer may make deposits to and direct any or all Account Debtors the Indenture Trustee in writing to make withdrawals from the Collection Account in accordance with the terms of the Basic Documents. The Collection Account will be established and maintained pursuant to an account agreement which specifies New York law as the governing law. In addition, the Collection Account shall be established and maintained at an Institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account shall be held by the Indenture Trustee as secured party for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lenderthe Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account shall be made only upon the terms and conditions of the Basic Documents. If the Servicer is required to remit collections pursuant to the first sentence of Section 4.2, all amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Collection Account in specified Permitted Investments that mature not later than the Business Day immediately prior to the Payment Date for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. All interest and other income (net of losses and investment expenses) on funds on deposit in the Collection Account shall be withdrawn from the Collection Account at the written direction of the Servicer and shall be paid to the Servicer. The Indenture Trustee shall not be liable for investment losses in Permitted Investments made in accordance with directions from the Servicer. In the event that the Collection Account is no longer to be maintained at the corporate trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit Account to be established as the Collection Account within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent).
(b) Lender may demandThe Servicer shall, collectprior to the Closing Date, receive establish and give receipts maintain an administrative subaccount within the Collection Account at the bank or trust company then maintaining the Collection Account, which subaccount shall be designated as the "Principal Distribution Account". The Principal Distribution Account is established and maintained solely for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s nameadministrative purposes.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines The Servicer shall, prior to the Closing Date, cause an Eligible Deposit Account to be appropriate for established and maintained, in the purpose of collecting any or all name "USAA Auto Owner Trust 2001-1 Certificate Distribution Account", initially at the corporate trust department of the Accounts; providedOwner Trustee, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed designated as the "Certificate Distribution Account". The Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Distribution Account pursuant to this Agreement and the Indenture shall be held by Debtor to Lender, with recourse.
(f) Lender the Owner Trustee as part of the Trust Property and shall have be applied as provided in the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Basic Documents. In the event that the Certificate Distribution Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines is no longer to be appropriate.
(g) Except as otherwise provided by maintained at the UCC and except for any corporate trust department of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsOwner Trustee, the sale Servicer shall cause an Eligible Deposit Account to be established as the Certificate Distribution Account within ten (10) Business Days (or other disposition of such longer period not to exceed thirty (30) calendar days as to which gives rise each Rating Agency may consent). The Certificate Distribution Account will be established and maintained pursuant to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission account agreement which results in specifies New York law as the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsgoverning law.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Usaa Federal Savings Bank Usaa Auto Owner Trust 2001-1)
Accounts. With respect 7.1 It shall be the responsibility of the Representative Board to ensure that proper books of account as to the Accounts, and without limiting Lender’s rights affairs of the LLP (which shall for the avoidance of doubt be deemed to include any computerised accounting system(s) from time to time used by the LLP) shall be kept properly posted.
7.2 Such books of account (including the data held on any such computerised system as is referred to in clause 7.1 above) shall be:
(a) Lender kept at the Registered Office or at such other place as the LLP may direct any or all Account Debtors from time to make payment directly to Lender or to a specified agent of Lender.time determine;
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due denominated in connection with the Accounts, in Lender’s or Debtor’s name.US dollars; and
(c) Lender open to inspection by the Members who may file any claim and take any other action copies of all entries.
7.3 The Representative Board shall (acting where appropriate in any court of law or equity which Lender determines to be appropriate for accordance with the purpose of collecting any or all requirements of the Accounts; providedCompanies Acts including in particular, howeverbut without limitation, that Lender shall not be obligated in any manner to make any demand or to make any inquiry requirements as to the nature or sufficiency qualifications necessary for the auditing of any payment received by it, or an LLP’s accounts):
(a) be deemed to present or file any claim or take any action to collect or enforce appoint the payment of any or all Accountants as auditors of the Accounts.LLP for the next ensuing Accounting Period;
(b) appoint auditors for each Accounting Period;
(c) have power to remove the auditors from office; and
(d) Debtor, at Lender’s request, shall, have power to fix the remuneration of the auditors.
7.4 The Representative Board may from time to time determine to amend the Accounts Date.
7.5 A profit and Lender, at Lender’s option may, give notice loss account shall be taken in form acceptable to Lender, to every year on the Account Debtors: Accounts Date and a balance sheet (itaking no account of goodwill) of Debtor’s grant of a security interest shall be prepared in the Accounts to Lender; United Kingdom in accordance with the then current Accounting Standards and (ii) in such format and giving such information, notes and disclosure of such additional information and instructions concerning Lender’s rights under this Security Agreement the interests of the Members in the LLP as Lender in Lender’s good faith business judgment determines may be required by the Companies Acts.
7.6 The accounts to be necessary or appropriate. GENERAL SECURITY AGREEMENTprepared in accordance with clause 7.5 above shall be:
(a) audited by the Accountants in accordance with the Companies Acts (unless the LLP shall be exempted by that Act from the requirement for its accounts to be audited);
(b) approved by the Members in accordance with the Companies Acts;
(c) signed by a Designated Member in the United Kingdom;
(d) binding on all Members after approval save that any Member may request the rectification of any manifest error discovered in any such accounts within 3 months of receipt of the same; and
(e) Debtor shall, promptly following Lender’s request, deliver distributed to Lender all Members (and to the originals holders of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of any debentures which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall may have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided been issued by the UCC and except for any of LLP) as required by the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsCompanies Acts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Limited Liability Partnership Agreement (Tronox Pigments Australia Holdings Pty LTD)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender open no bank accounts other than (i) the Proceeds Account, (ii) the Project Account, (iii) the Earnings Account, (iv) the Debt Service Reserve Account, and (v) such other accounts as from time to time may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.be approved by the Facility Agent;
(b) Lender maintain no bank accounts other than (i) the Proceeds Account, (ii) the Project Account, (iii) the Earnings Account (iv) the Debt Service Reserve Account, and (v) any other account(s) as may demand, collect, receive and give receipts for any and all money and other property due or to become due be approved by the Facility Agent as contemplated in connection with the Accounts, in Lender’s or Debtor’s name.sub-paragraph (v) of paragraph (a) of this clause 10.2.9;
(c) Lender may file any claim maintain each of the Proceeds Account, the Earnings Account, the Project Account and take the Debt Service Reserve Account with the Account Bank;
(d) use all reasonable endeavours to procure that the Charterer and any other action in any court relevant person shall pay all Charter Rate and other Earnings into the Earnings Account and the Borrower further agrees that it will procure that all payments of law or equity Charter Rate and other Earnings which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment are received by it, the Head Charterer or any other member of the Group shall be paid into the Earnings Account for application in accordance with clause 5 of the Deed of Proceeds and Priorities;
(e) pay or procure the payment of all compensation from time to present time during the Security Period received in respect of any requisition of the Rig for hire into the Earnings Account for application in accordance with clause 5 of the Deed of Proceeds and Priorities;
(f) pay or file any claim or take any action to collect or enforce procure the payment of any or all Loss of Earnings Proceeds into the Earnings Account for application in accordance with clause 5 of the Accounts.
(d) Debtor, at Lender’s request, shall, Deed of Proceeds and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.Priorities;
(g) Except as otherwise provided procure the payment of any moneys received or receivable by the UCC and except for any of Borrower from the following arising from Lender’s Hedging Provider under or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances pursuant to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Hedging Agreements into the Earnings Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.;
(h) If for any reason Debtor receives any pay or procure the payment in connection with any of the Accounts proceeds of any confiscation and expropriation insurances (if any) in respect of the Rig into the Proceeds Account;
(i) do nothing which may prevent the Security Trustee and the Facility Agent applying all Charter Rate and other Earnings in accordance with the Deed of Proceeds and Priorities and in repayment or prepayment (as applicable) of the Loan, in accordance with clause 8.7 or clause 8.8 hereof and clause 5 and/or 9 of the Deed of Proceeds and Priorities, as the case may be;
(j) pay (A) proceeds in respect of any disposal of the whole or part of the Rig, (B) Total Loss Proceeds and (C) the whole amount of any other Insurance Proceeds (excluding Loss of Earnings Proceeds) where the amount of those proceeds exceeds the Casualty Amount and (following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in any Insurance Proceeds less than the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; Casualty Amount and (ivD) shall hold guarantee payments in respect of the Rig Rights, or procure that all such payment separate proceeds are paid, into the Proceeds Account for application in accordance with clause 6 of this Agreement and/or clauses 5, 6 or 9 (as applicable) of the Deed of Proceeds and apart from Debtor’s other funds Priorities; and
(k) procure that all Liquidated Damages are paid into the Proceeds Account for application in accordance with clause 9 of the Deed of Proceeds and property in an express trust for Lender until paid or delivered to Lender.Priorities;
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct Each Borrower hereby represents and warrants to the Agent and the Lenders, with respect to such Borrower's Accounts, that: (i) each existing Account represents, and each future Account will represent, a BONA FIDE sale or lease and delivery of goods by such Borrower, or rendition of services by such Borrower, in the ordinary course of such Borrower's business; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Agent, without any offset, deduction, defense, or counterclaim except those known to such Borrower and disclosed to the Agent and the Lenders to the extent required pursuant to this Agreement; (iii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except in the ordinary course of the Borrowers' business when no Event of Default exists hereunder and, to the extent required hereunder, as reported to the Agent and the Lenders in accordance with this Agreement; (iv) each copy of an invoice delivered to the Agent by such Borrower will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all goods described in any invoice representing a sale of goods will have been delivered to the Account Debtors to make payment directly to Lender or to a specified agent Debtor and all services of Lendersuch Borrower described in each invoice will have been performed.
(b) Lender may demandNo Borrower shall re-date any invoice or sale or make sales on extended dating beyond that customary in such Borrower's business or extend or modify any Account, collectexcept in the ordinary course of the Borrowers' business when no Event of Default exists hereunder. If a Borrower becomes aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an amount greater than $250,000, receive and give receipts for any and all money and other property due or to become due in connection with including information regarding the AccountsAccount Debtor's creditworthiness, in Lender’s or Debtor’s namesuch Borrower will promptly so advise the Agent.
(c) Lender may file No Borrower shall accept any claim and take any note or other action in any court of law instrument (except a check or equity which Lender determines to be appropriate other instrument for the purpose immediate payment of collecting money) with respect to any or all Account without the Agent's written consent. If the Agent consents to the acceptance of any such instrument, it shall be considered as evidence of the Accounts; provided, however, that Lender shall applicable Account and not be obligated in any manner to make any demand or to make any inquiry as payment thereof and the applicable Borrower will promptly deliver such instrument to the nature or sufficiency of any payment received Agent, endorsed by it, or such Borrower to present or file any claim or take any action the Agent in a manner satisfactory in form and substance to collect or enforce the payment of any or all of the AccountsAgent.
(d) Without limiting the obligation of the Borrowers to disclose ineligible Accounts on the Borrowing Base Certificates delivered pursuant to Section 6.6, each Borrower shall notify the Agent promptly of all disputes and claims in excess of $250,000 with any Account Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right agrees to settle, accept reduced amountscontest, or adjust such dispute or claim at no expense to the Agent or any Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Agent's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the Borrowers' business when no Event of Default exists hereunder. The applicable Borrower shall send the Agent a copy of each credit memorandum in excess of $250,000 as soon as issued. The Agent may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly withwith Account Debtors for amounts and upon terms which the Agent or the Required Lenders, and give releases on behalf of Debtor to Account Debtorsas applicable, upon such terms as Lendershall consider advisable and, in Lender’s good faith business judgmentall cases, determines to be appropriatethe Agent will credit the Loan Account with the net amounts received by the Agent in payment of any Accounts.
(ge) Except as otherwise provided by If an Account Debtor returns any Inventory to a Borrower when no Event of Default exists, then such Borrower shall promptly determine the UCC reason for such return and except shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Borrowers shall immediately report to the Agent any return involving an amount in excess of $250,000. Each such report shall indicate the reasons for any the returns and the locations and condition of the following arising from Lender’s or returned Inventory. In the event any Lender’s gross negligence or willful misconductAccount Debtor returns Inventory to the Borrowers when an Event of Default exists, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party forthe Borrowers, upon the request of the Agent, shall: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, hold the sale or other disposition of which gives rise to an Accountreturned Inventory in trust for the Agent; (ii) any act, omission, error or delay segregate all returned Inventory from all of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third personits other property; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all dispose of the Collateral, including returned Inventory solely according to the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or propertyAgent's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent's prior written consent. All returned Inventory shall hold be subject to the Agent's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.returned Inventory
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any or all Prior to the Closing Date there shall have been established (i) the Ford Credit Deposit Account, pursuant to which Ford Credit has agreed to deposit collections on the Ford Credit Receivables, as more specifically described in the Ford Credit Servicing Agreement and (ii) a Huntington Deposit Account, pursuant to which Huntington shall deposit collections on the Huntington Receivables, as more specifically described in the Huntington Purchase and Servicing Agreement. Each of the forgoing deposit accounts were established and shall initially be maintained with the Depository Institution. On the second Business Day prior to each Payment Date, the Indenture Trustee shall withdraw from each such deposit account for deposit into the Collection Account Debtors the Available Collections for the related Collection Period. All monies owned by the Issuer deposited from time to make time in the foregoing deposit accounts shall be held by the Depository Institution for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lender.
(b) Lender may demand, collect, receive the Issuer and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all as part of the AccountsTrust Property; provided, however, that Lender all monies owned by the Seller or other third parties deposited from time to time in the foregoing deposit accounts shall not be obligated in any manner so held and shall not be available for deposit into the Collection Account and shall not be available to make any demand payments in respect of the Notes or the Certificates.
(b) The Indenture Trustee shall, prior to make any inquiry the Closing Date, cause to be established and maintained two Eligible Deposit Accounts in the name "Wells Fargo Bank, National Association, as Indenture Trustee and a▇ ▇▇▇ured party for GS Auto Loan Trust 2004-1", initially at the corporate trust department of the Indenture Trustee, which shall be designated as the "Collection Account" and the "Principal Distribution Account," respectively. The Collection Account and the Principal Distribution Account shall be under the sole dominion and control of the Indenture Trustee. In addition, the Collection Account and the Principal Distribution Account shall be established and maintained at an institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account and the Principal Distribution Account shall be held by the Indenture Trustee as secured party for the benefit of the Indenture Secured Parties and, after payment in full of the Notes, as agent of the Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account and the Principal Distribution Account shall be made only upon the terms and conditions of the Basic Documents. All amounts held in the Collection Account and the Principal Distribution Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the depository institution or trust company then maintaining the Collection Account and the Principal Distribution Account in specified Permitted Investments that mature not later than the second Business Day immediately prior to the Payment Date (or if the Rating Agency Condition is satisfied, not later than such Payment Date) for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. The Indenture Trustee shall not be liable for investment losses in Permitted Investments made in accordance with directions from the Servicer. In the event that the Collection Account or the Principal Distribution Account is no longer to be maintained at the corporate trust department of the Indenture Trustee, the Indenture Trustee shall cause an Eligible Deposit Account to be established as the Collection Account or Principal Distribution Account, as applicable, within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountswhich each Rating Agency may consent).
(c) [Reserved].
(d) Debtor, at Lender’s request, The Indenture Trustee shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, prior to the Closing Date, cause an Eligible Deposit Account Debtors: (i) of Debtor’s grant of a security interest to be established and maintained, in the Accounts to Lender; and (ii) name "GS Auto Loan Trust 2004-1 Certificate Distribution Account", initially at the corporate trust department of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallthe Indenture Trustee, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed designated as the "Certificate Distribution Account". The Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Distribution Account pursuant to this Agreement and the Indenture shall be held by Debtor to Lender, with recourse.
(f) Lender the Owner Trustee as part of the Trust Property and shall have be applied as provided in the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Basic Documents. In the event that the Certificate Distribution Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines is no longer to be appropriate.
(g) Except as otherwise provided by maintained at the UCC and except for any corporate trust department of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsIndenture Trustee, the sale Indenture Trustee shall cause an Eligible Deposit Account to be established as the Certificate Distribution Account within ten (10) Business Days (or other disposition of such longer period not to exceed thirty (30) calendar days as to which gives rise to an Account; (iieach Rating Agency may consent) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment and shall give written notice of the Debtor’s Account, including any act or omission which results in location and account number of such account to the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsOwner Trustee.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Gs Auto Loan Trust 2004-1)
Accounts. With (a) The Grantors hereby represent and warrant to the Lender, with respect to the Grantors' Accounts, that: (i) each existing Account represents, and each future Account will represent, a bona fide sale or lease and delivery of goods by the Grantors, or rendition of services by the Grantors, in the ordinary course of the Grantors' businesses; (ii) each existing Account is, and each future Account will be, for a liquidated amount payable by the Account Debtor thereon on the terms set forth in the invoice therefor or in the schedule thereof delivered to the Lender, without limiting Lender’s rights above:
any offset, deduction, defense, or counterclaim except those known to the Grantors and disclosed to the Lender pursuant to this Security Agreement; (aiii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported to the Lender may direct in Borrowing Base Certificates delivered in accordance with this Security Agreement; (iv) each copy of an invoice delivered to the Lender by the Grantors will be a genuine copy of the original invoice sent to the Account Debtor named therein; and (v) all goods described in any or invoice representing a sale of goods will have been delivered to the Account Debtor and all Account Debtors to make payment directly to Lender or to a specified agent services of Lenderthe Grantors described in each invoice will have been performed.
(b) The Grantors shall not re-date any invoice or sale or make sales on extended dating beyond that customary in the Grantors' businesses or extend or modify any Account. If the Grantors become aware of any matter adversely affecting the collectibility of any Account or the Account Debtor therefor involving an amount greater than $250,000, including information regarding the Account Debtor's creditworthiness, the Grantors will promptly so advise the Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the exclude such Account from Eligible Accounts, in Lender’s or Debtor’s name.
(c) Lender may file The Grantors shall not accept any claim and take any note or other action in any court of law instrument (except a check or equity which Lender determines to be appropriate other instrument for the purpose immediate payment of collecting money) with respect to any or all Account without the Lender's written consent. If the Lender consents to the acceptance of any such instrument, it shall be considered as evidence of the Accounts; provided, however, that Lender shall Account and not be obligated in any manner to make any demand or to make any inquiry as payment thereof and the Grantors will promptly deliver such instrument to the nature or sufficiency of any payment received Lender, endorsed by it, or the appropriate Grantor to present or file any claim or take any action the Lender in a manner satisfactory in form and substance to collect or enforce the payment of any or all Lender. Regardless of the Accountsform of presentment, demand, notice of protest with respect thereto, the Grantors shall remain liable thereon until such instrument is paid in full.
(d) The Grantors shall notify the Lender promptly of all disputes and claims in excess of $250,000 with any Account Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right agree to settle, accept reduced amountscontest, or adjust such dispute or claim at no expense to the Lender. No discount, credit or allowance shall be granted to any such Account Debtor without the Lender's prior written consent, except for discounts, credits and allowances made or given in the ordinary course of the Grantors' businesses when no Event of Default exists hereunder. The Grantors shall send the Lender a copy of each credit memorandum in excess of $250,000 as soon as issued, and the Grantors shall promptly report that credit on Borrowing Base Certificates submitted by them. The Lender may at all times when an Event of Default exists hereunder, settle or adjust disputes and claims directly with, with Account Debtors for amounts and give releases on behalf of Debtor to Account Debtors, upon such terms as Lenderwhich the Lender shall consider advisable and, in Lender’s good faith business judgmentall cases, determines to be appropriatethe Lender will credit the Grantor's Loan Account with the net amounts received by the Lender in payment of any Accounts.
(ge) Except as otherwise provided by If an Account Debtor returns any Inventory to the UCC Grantors when no Event of Default exists, then the Grantors shall promptly determine the reason for such return and except shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Grantors shall immediately report to the Lender any return involving an amount in excess of $250,000. Each such report shall indicate the reasons for any the returns and the locations and condition of the following arising from returned Inventory. In the event any Account Debtor returns Inventory to the Grantors when an Event of Default exists, the Grantors, upon the request of the Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party forshall: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, hold the sale or other disposition of which gives rise to an Accountreturned Inventory in trust for the Lender; (ii) any act, omission, error or delay segregate all returned Inventory from all of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third persontheir other property; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all dispose of the Collateral, including returned Inventory solely according to the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property's written instructions; and (iv) unless the amount of such credit or allowance is less than $500, not issue any credits or allowances with respect thereto without the Lender's prior written consent. All returned Inventory shall hold be subject to the Lender's Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to such payment separate returned Inventory and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lendersuch returned Inventory shall not be Eligible Inventory.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any Prior to the Closing Date there shall have been established (i) the DCS Deposit Account, pursuant to which DCS shall deposit collections on the DCS Receivables, as more specifically described in the DCS Servicing Agreement, (ii) the Ford Credit Deposit Account, pursuant to which Ford Credit shall deposit collections on the Ford Credit Receivables, as more specifically described in the Ford Credit Servicing Agreement and (iii) the GMAC Deposit Accounts, pursuant to which GMAC shall deposit collections on the GMAC Receivables, as more specifically described in the GMAC Servicing Agreements. Each of the forgoing deposit accounts were established and shall initially be maintained with the relevent Depository Institution. Pursuant to the Data Administration Agreement, on or all prior to each Payment Date, the Data Administrator shall instruct each Depository Institution to withdraw from each such deposit account for deposit into the Collection Account Debtors the Available Collections for the related Collection Period. All monies owned by the Trust deposited from time to make time in the foregoing deposit accounts shall be held by each Depository Institution for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lender.
(b) Lender may demand, collect, receive the Issuer and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all as part of the AccountsTrust Property; provided, however, that Lender all monies owned by third parties deposited from time to time in the foregoing deposit accounts shall not be obligated in any manner so held and shall not be available for deposit into the Collection Account and shall not be available to make any demand payments in respect of the Notes or the Certificates.
(b) The Servicer shall, prior to the Closing Date, cause to be established and maintained an Eligible Deposit Account in the name "JPMorgan Chase Bank, as Indenture Trustee and as secured party from Whole Auto Loan Trust 2004-1", initially at the corporate trust department of the Indenture Trustee, which shall be designated as the "Collection Account". The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided, that the Servicer and/or relevant Depository Institution may make any inquiry deposits to, and the Indenture Trustee may (following written instruction of the Data Administrator or the Servicer) make withdrawals from, the Collection Account in accordance with the terms of the Basic Documents. The Collection Account will be established and maintained pursuant to an account agreement which specifies New York law as the governing law. In addition, the Collection Account shall be established and maintained at an institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account shall be held by the Indenture Trustee as secured party for the benefit of the Noteholders and, after payment in full of the Notes, as agent of the Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account shall be made only upon the terms and conditions of the Basic Documents. All amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the depository institution or trust company then maintaining the Collection Account in specified Permitted Investments that mature not later than the Business Day immediately prior to the Payment Date (or if the Rating Agency Condition is satisfied, not later than such Payment Date) for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. The Indenture Trustee shall not be liable for investment losses in Permitted Investments made in accordance with directions from the Servicer. In the event that the Collection Account is no longer to be maintained at the corporate trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit Account to be established as the Collection Account within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent).
(c) The Servicer shall, prior to the nature or sufficiency of any payment received by itClosing Date, or to present or file any claim or take any action to collect or enforce establish and maintain an administrative subaccount within the payment of any or all of Collection Account, which subaccount shall be designated as the Accounts"Principal Distribution Account". The Principal Distribution Account is established and maintained solely for administrative purposes.
(d) Debtor, at Lender’s request, The Servicer shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, prior to the Closing Date, cause an Eligible Deposit Account Debtors: (i) of Debtor’s grant of a security interest to be established and maintained, in the Accounts to Lender; and (ii) name "Whole Auto Loan Trust 2004-1 Certificate Distribution Account", initially at the corporate trust department of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallthe Indenture Trustee, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed designated as the "Certificate Distribution Account". The Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Distribution Account pursuant to this Agreement and the Indenture shall be held by Debtor to Lender, with recourse.
(f) Lender the Owner Trustee as part of the Trust Property and shall have be applied as provided in the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Basic Documents. In the event that the Certificate Distribution Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines is no longer to be appropriate.
(g) Except as otherwise provided by maintained at the UCC and except for any corporate trust department of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsIndenture Trustee, the sale Servicer shall cause an Eligible Deposit Account to be established as the Certificate Distribution Account within ten (10) Business Days (or other disposition such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent) and shall give written notice of which gives rise the location and account number of such account to the Owner Trustee. The Certificate Distribution Account will be established and maintained pursuant to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission account agreement which results in specifies New York law as the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsgoverning law.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Bear Stearns Asset Backed Whole Auto Loan Trust 2004-1)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct The Trustees shall maintain one or more accounts (“Trust Accounts”) on behalf of the Trust with one or more financial depository institutions (each a “Financial Institution”). Candidates for the positions of Financial Institution shall fully disclose to the Trustees any interest in or all Account Debtors to make payment directly to Lender relationship with the Debtors, their affiliated persons, Covidien, any Opioid Creditor Trust (other than NOAT II or to TAFT II), or any Released Parties. Any such interest or relationship shall not be an automatic disqualification for the position, but the Trustees shall take any such interest or relationship into account in selecting a specified agent of LenderFinancial Institution.
(b) Lender The Trustees may, from time to time, create such accounts and reasonable reserves within the Trust Accounts as authorized in this Section 3.1 and as they may demanddeem necessary, collectprudent or useful in order to provide for Abatement Distributions to NOAT II Beneficiaries and the payment of NOAT II Operating Expenses and may, receive with respect to any such account or reserve, restrict the use of money therein for a specified purpose (the “Trust Subaccounts”). Any such Trust Subaccounts established by the Trustees shall be held as Trust Assets and give receipts for any and all money and other property due are not intended to be subject to separate entity tax treatment as a “disputed claims reserve” within the meaning of the IRC or to become due in connection with the AccountsTreasury Regulations, in Lender’s or Debtor’s namea “disputed ownership fund” within the meaning of the Treasury Regulations, or otherwise.
(c) Lender The Trustees may file replace any claim retained Financial Institution with a successor Financial Institution at any time, and take any other action such successor shall be subject to the considerations set forth in any court Section 3.1(a).
(d) The Trustees shall establish a separate subaccount of law or equity which Lender determines the Trust to be appropriate receive funds designated under the Plan for the purpose of collecting any or all of State Opioid Attorneys’ Fee Fund, which subaccount shall be subject to separate administration exclusively in accordance with the Accountsterms set forth on Exhibit 5 (the “State Opioid Attorneys’ Fee Fund”); provided, however, that Lender shall not be obligated it is acknowledged that the Trust holds such funds for administrative convenience and the Trustees have no responsibility to invest such funds or discretion to vary from the processes and determinations set forth in any manner Exhibit 5; provided further that the Fund Committee may direct the Trustees in writing to make any demand invest such funds in one or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shallmore specified interest bearing accounts, and Lenderthe Trustees shall invest the funds accordingly. To the extent the Trustees do not receive any such written direction, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest Trustees shall invest the funds in the Accounts to Lender; and designated default account at BlackRock Fed Fund (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourseCUSIP ▇▇▇▇▇▇▇▇▇).
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Trust Agreement
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct The Company shall, and shall cause each of its Subsidiaries to, cause to be mailed, by the respective payors thereof, directly into the post office lockbox opened in accordance with the terms of the Lockbox Agreement or if the Company or any of its Subsidiaries opens a post office lockbox and lockbox account with another commercial bank or financial institution in accordance with subsection (c) of this Section, such post office lockbox (each such lockbox, a "Lockbox"), all Account Debtors revenues, receipts and other amounts which the Company or any of its Subsidiaries is entitled to make payment directly receive from any source whatsoever (including, without limitation, all payments received in respect of its Contractual Obligations and all dividends and other distributions paid to Lender the Company or to any of its Subsidiaries by any of the Company's Subsidiaries). The Company shall open and maintain a specified agent lockbox account in accordance with the terms of Lenderthe Lockbox Agreement (such account and the lockbox account opened with another commercial bank or financial institution in accordance with subsection (c) of this Section, a -29- "Lockbox Account"). The Company and its Subsidiaries shall maintain no more than two Lockboxes and two Lockbox Accounts at any one time.
(b) Lender may demandThe Company, collectfor itself and on behalf of its Subsidiaries, receive the Collateral Agent and give receipts for any KeyBank shall execute the Lockbox Agreement stating, among other things, that (i) the Lockbox Account is deemed to be a "deposit account" as such term is defined in Article 9 of the UCC and all money and other property due or to become due in connection (ii) KeyBank agrees that it will comply with the Accounts, instructions directing disposition of the funds in Lender’s the Lockbox Account originated by the Collateral Agent without further consent by the Company or Debtor’s nameany of its Subsidiaries.
(c) Lender may file The Company or any claim of its Subsidiaries may, upon 30 days' notice to the Collateral Agent, open another Lockbox and take any other action in any court of law Lockbox Account with another commercial bank or equity financial institution into which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provideditems described in clause (a) of this Section that are not mailed to any other Lockbox shall be mailed. If the Company or any of its Subsidiaries elects to open a new Lockbox and Lockbox Account with another commercial bank or financial institution, howeverthe Company or such Subsidiary and the Collateral Agent shall execute a security agreement, that Lender shall not be obligated substantially in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all form of the AccountsSecurity Agreement or such form as the Collateral Agent may, in its reasonable discretion, approve, and the Company or such Subsidiary, the Collateral Agent and the commercial bank or financial institution maintaining such Lockbox Account shall execute an agreement, in form and substance as the Collateral Agent may, in its reasonable discretion, approve, stating that (i) such Lockbox Account is deemed to be a "deposit account" as such term is defined in Article 9 of the UCC and (ii) such commercial bank or financial institution will comply with the instructions directing disposition of the funds in the Lockbox Account originated by the Collateral Agent without further consent by the Company or such Subsidiary.
(d) DebtorSo long as no Event of Default has occurred or is continuing or would result therefrom, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for Company may transfer funds from any of the following arising from Lender’s Lockbox Accounts to any other account maintained by the Company or any Lender’s gross negligence of its Subsidiaries or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or for any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountspurpose.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Senior Secured Notes Agreement (Pacific Aerospace & Electronics Inc)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct The Borrower shall cause to be established one or more accounts with the Depositary pursuant to the Depositary Agreement in the name of the Borrower. The Borrower shall cause the Depositary to create a Collection Account, a Liquidity Reserve Account, a Maintenance Reserve Account and a Modifications and Improvements Account, in each case in accordance with the terms of the Depositary Agreement. The Borrower shall notify (and the Borrower hereby authorizes the Collateral Agent so to notify), in each case following the occurrence and during the continuation of a Manager Default or an Event of Default, each Lessee and other account debtors of the Borrower in writing that each Lease and other accounts receivable of the Borrowers has been assigned to the Collateral Agent under the Loan Documents for the benefit of the Protected Parties. The Borrower also shall notify and instruct each Lessee that all payments due or to become due under each Portfolio Lease (except for Excepted Payments (which shall be payable to the Persons for whose benefit any such payment is made)) or all Account Debtors otherwise in respect of amounts and other receivables of the Borrower are to make payment be made directly to Lender or to a specified agent the Customer Payments Account (or, after the occurrence of Lenderthe Customer Collections Account Administration Agreement Severance, the Collection Account).
(b) Lender Any amounts from time to time held in the Collection Account, the Maintenance Reserve Account, the Modifications and Improvements Account and the Liquidity Reserve Account may demand, collect, receive and give receipts for any and all money and other property due or be invested in Cash Equivalents (subject to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all provisions of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) DebtorDepository Agreement), at Lenderthe Borrower’s request, shall, and Lender, at Lender’s option may, give notice risk as directed in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided writing by the UCC and except for any of Borrower, until the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible application thereof in any way or under any circumstances to Debtor or any other party for: (iaccordance with Section 2.07(c) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following . Upon the occurrence and during the continuance of an Event of Default, Debtor: the Agent may direct by notice the Depositary to pay to the Agent the amount specified in such notice from the Account(s) specified in such notice, and the Agent shall apply such amounts received from the Depositary to the repayment of the Obligations in accordance with the applicable provisions of Section 2.07(c).
(c) Subject to the provisions of the Depository Agreement, the Agent may from time to time in its sole discretion (and, to the extent such application would have the effect of curing a Default under Section 9.01(a) hereof or if the Loans have become or been declared immediately due and payable pursuant to Section 9.02, shall) instruct the Depositary to pay into the Collection Account any amounts from time to time on deposit in the Liquidity Reserve Account; provided that, so long as no Event of Default shall have occurred and then be continuing, (i) the Agent shall immediately pay or deliver have consulted with the Borrower prior to giving such payment to Lender in the original form in which received by Debtor; instruction and (ii) if and to the extent determined by the Agent and the Borrower that a reserve is required to be held in the Accounts in respect of anticipated claims by a Lessee for payment of deposit, maintenance reserves or insurance or indemnity payments, such reserve shall endorse be retained in the Accounts.
(d) Any amounts deposited into the Collection Account pursuant to Lender, this Section 6.13 shall be applied by the Agent in accordance with recourse, Section 2.07(c).
(e) The Manager hereby agrees to allocate all checks, drafts, money orders, notesCash Flow from the Customer Payments Account to the Collections Account on a daily basis, and other instruments shall provide written notice thereof (which notice may be made by facsimile or documents representing electronic mail) to the Agent on a daily basis, in each case in accordance with the Customer Collections Account Administration Agreement.
(f) Within 3 Business Days after receiving direction from the Required Lenders, each of the Agent and the Borrower shall take all actions necessary to sever itself (and each shall sever itself within such payment; period) as a “Beneficiary” under the Customer Collections Account Administration Agreement (iiithe “Customer Collections Account Administration Agreement Severance”) shall not commingle such payment in accordance with any of Debtor’s other funds or property; and (ivSection 11(c) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderthereof.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct Each of the Accounts shall be established at the applicable Account Bank. The Underlying Entity Accounts shall be established and maintained in accordance with the respective Underlying Entity Agreement. Buyer shall have sole dominion and control (including, without limitation, “control” within the meaning of Section 9-104(a) of the UCC) over each Account. Neither Seller nor any Person claiming through or all under Seller shall have any claim to or interest in any Account. All Income received by Servicer, any Relevant Party, or Account Debtors Bank in respect of the Purchased Assets or any Underlying Assets, as well as any interest received from the reinvestment of such Income, shall be deposited directly into the applicable Trust Account in accordance with Section 5.01(b); provided that Servicer shall be entitled to make payment directly to Lender or to a specified agent remit such Income net of Lenderapplicable Servicer Reimbursement Amounts.
(b) Lender may demandIf any Income or Escrow Payments are received by any Servicer or any Relevant Party with respect to any Underlying Assets, collectSeller shall ensure that such amounts are (x) remitted to the applicable Trust Account promptly, receive but in any event, not later than the second (2nd) Business Day following receipt thereof (or, with respect to amounts remitted by the Servicer, on each monthly remittance date (as specified in the related Servicing Agreement)) and, (y) until so remitted, held in trust for Buyer, segregated from other funds of such Person. By no later than one (1) Business Day prior to the Remittance Date the Trustee shall withdraw all Income and give receipts for any Escrow Payments on deposit in the Trust Accounts net of fees and all money expenses the Trustee is expressly permitted to retain under the terms of the related Underlying Entity Agreement and other property due or the applicable Letter Agreement and remit such amounts to become due the Waterfall Account in connection accordance with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim terms and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all conditions of the Accounts; provided, however, that Lender related Underlying Entity Agreement. All amounts on deposit in the Waterfall Account shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received applied on each Remittance Date by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest Bank in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under accordance with this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourseArticle 5.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Master Repurchase Agreement (AG Mortgage Investment Trust, Inc.)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct The Trustee shall maintain one or more accounts (“Trust Accounts”) on behalf of the Trust with one or more financial depository institutions (each a “ Financial Institution”). Candidates for the positions of Financial Institution shall fully disclose to the Trustee any interest in or all Account relationship with the Purchaser Entities, the Debtors to make payment directly to Lender or to any other Released Parties. Any such interest or relationship shall not be an automatic dis qualification for the position, but the Trustee shall take any such interest or relationship into account in selecting a specified agent of LenderFinancial Institution.
(b) Lender The Trustee may, from time to time, create such accounts and reasonable reserves within the Trust Accounts as authorized in this Section 3.1 and as he or she may demanddeem necessary, collectprudent or useful in order to provide for distributions to Beneficiaries and the payment of Trust Operating Expenses and may, receive with respect to any such account or reserve, restrict the use of money therein for a specified purpose (the “Trust Subaccounts”). Any such Trust Subaccounts established by the Trustee shall be held as Trust Assets and give receipts for any and all money and other property due are not intended to be subject to separate entity tax treatment as a “disputed claims reserve” within the meaning of the IRC or to become due in connection with the AccountsTreasury Regulations, in Lender’s or Debtor’s namea “disputed ownership fund” within the meaning of the Treasury Regulations, or otherwise.
(c) Lender The Trustee may file replace any claim retained Financial Institution with a successor Financial Institution at any time, and take any other action in any court of law or equity which Lender determines to such successor shall be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as subject to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountsconsiderations set forth in Section 3.1(a).
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable The Trustee shall establish two separate subaccounts of the Trust to Lender, to receive funds designated under the Account Debtors: Plan for (i) the professional fees of Debtor’s grant of a security interest the Beneficiaries (the “ State Opioid Costs and Fees Allocation”) which shall be administered exclusively in accordance with the Accounts to Lender; terms set forth on Exhibit 2 hereof, and (ii) the professional fees of such additional information the Local Governments (the “Political Subdivision Costs and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriateFees Allocation”). GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor administered exclusively in accordance with the terms set forth on Exhibit 3 hereof. (The State Opioid Costs and Fees Allocation and the Political Subdivision Costs and Fees Allocation are sometimes referred to Lender, with recoursecollectively as the “Professionals Fee Funds.
(f”) Lender It is understood that the Trust shall hold the Professionals Fee Funds for administrative convenience and the Trustee shall have no responsibility to administer such Professionals Fee Funds, or to direct the right disbursement or investment of such Professionals Fee Funds; provided that (x) the Trustee will disburse the State Opioid Costs and Fees Allocation in accordance with Exhibit 2 and (y) the Trustee will disburse the Political Subdivision Costs and Fees Allocation in according with Exhibit 3. To the extent the Trustee does not receive any written direction with respect to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any investment of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsProfessionals Fee Funds, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) Trustee shall hold such payment separate and apart from Debtor’s other the funds and property in an express trust for Lender until paid or delivered to Lenderinterest bearing account at the Financial Institution.
Appears in 1 contract
Sources: Trust Agreement
Accounts. With (a) Unless otherwise specified in the UTI Supplement, the Titling Trustee will establish and maintain with respect to the Accounts, Undivided Trust Interest a Lease Funding Account satisfying the definition of an Eligible Account. The Lease Funding Account shall be established and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due maintained in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all name of the AccountsTitling Trustee on behalf of the UTI Sub-Trust. None of the Grantor, any Beneficiary or, subject to Section 7.02(c), the holder or pledgee of any UTI Certificate or SUBI Certificate shall have any right to draw on the Lease Funding Account without the express written consent of the Titling Trustee; provided, however, that Lender the Titling Trustee, with the express written consent of the related UTI Beneficiary, shall so consent to the extent provided for in the documentation relating to any Securitized Financing of such UTI Certificate or SUBI Certificate. The Lease Funding Account shall only contain funds relating to UTI Assets.
(b) For so long as the Monthly Remittance Conditions are satisfied, the Servicer shall not be obligated required to remit to the Lease Funding Account collections in respect of any Titling Trust Assets allocable to the Lease Funding Account on a daily basis but shall be entitled to retain such collections, without segregation from its other funds, until the Business Day preceding the date identified as a “Distribution Date” in the related UTI Supplement, at which time the Servicer shall so remit all such collections in immediately available funds; provided that (i) investments on which the Trust Agent is the obligor (including repurchase agreements as to which it, in its commercial capacity, is liable as principal), may mature on the Distribution Date, and (ii) investments made of collections on deposit in a SUBI Collection Account in respect of the related Contracts and Leased Vehicles may mature on such dates as specified by the Titling Trustee at the Servicer’s direction so as to maintain the availability of sufficient cash to make the payments described in any manner SUBI Supplement or related SUBI Servicing Supplement. Notwithstanding the foregoing, commencing with the first day of the first period identified as a “Collection Period” in the related UTI Supplement or SUBI Supplement, as the case may be, that begins at least two Business Days after the day on which any Monthly Remittance Conditions cease to make any demand be satisfied and for so long as the Monthly Remittance Conditions are not satisfied, all collections in respect of the UTI Assets or to make any inquiry the related SUBI Assets, as applicable, then held by the Servicer shall be immediately so deposited and all such future collections shall be so remitted by the Servicer to the nature appropriate account in accordance with this Agreement or sufficiency the related SUBI Servicing Supplement, as applicable, on a daily basis within two Business Days after receipt thereof. Each SUBI Servicing Supplement shall also provide (i) the terms on which any other funds received by any Servicer, including funds transferred from any of the SUBI Collection Accounts to the extent of (1) the net investment value (as recorded on the books of the Titling Trust) of any payment Contracts and Leased Vehicles allocated to a SUBI in a Trust Asset Transfer, (2) reimbursement of any Servicer Advances provided for in any Securitized Financing with respect to such SUBI or (3) funding for such SUBI’s share of any allocable Titling Trust Expenses will be deposited by the Servicer into the Lease Funding Account (or transferred directly to the Servicer, Grantor or UTI Beneficiary directly, as appropriate) and (ii) whether and under what circumstances any other funds received by itthe Servicer with respect to a SUBI Asset, including income with respect to any investment made in any SUBI Account, shall be deposited by the Servicer into an appropriate SUBI Account.
(c) Except as otherwise provided in Section 7.03, a UTI Supplement or a SUBI Supplement, all Titling Trust Expenses shall be paid out of the Lease Funding Account or from monies held by the Servicer and allocable thereto or distributable in respect thereof, including: (i) any reimbursement due to present the Servicer for payments from its own operating accounts in order to fund (A) amounts due to Dealers in payment for the assignment to the Titling Trustee of Contracts and Leased Vehicles occurring prior to the Titling Trustee’s notice to the Servicer to cease acquiring Contracts and Leased Vehicles on behalf of the Titling Trustee given pursuant to Section 7.02(c)(ii) and (B) any other Advances made by the Servicer with the consent of the Titling Trustee (to be given at the direction of the UTI Beneficiary or file any claim or take any action to collect or enforce in accordance with the payment terms of any Securitized Financing), with respect to any Contract or all Leased Vehicle, (ii) Servicer fees (and expenses, if any, not covered by the Servicer fee under any SUBI Servicing Supplement), (iii) Titling Trustee fees and expenses and (iv) other Titling Trust Expenses, if any; provided, however, that, to the extent that any Liability of the AccountsTitling Trustee or any Beneficiary is incurred in respect of Affected Trust Assets allocated to one or more Sub-Trusts, then such Liability shall be borne in accordance with Section 3.04, and the Titling Trustee, at the direction of the Servicer, shall transfer periodically from the related SUBI Collection Accounts to the Lease Funding Account each Sub-Trust’s appropriate share of such aggregate Liabilities of the Titling Trust. Prior to the funding of the Lease Funding Account from collections on outstanding Contracts or otherwise, the UTI Beneficiary will advance monies to fund the origination of Contracts as described in the UTI Supplement. The UTI Supplement or any SUBI Supplement may provide that all or any portion of the collections on the related UTI Assets or SUBI Assets will be deposited in the Lease Funding Account or the related SUBI Lease Funding Account for a period of time specified therein. Prior to the creation of a SUBI, the expenses of the Titling Trust will be advanced by the UTI Beneficiary or funded from collections on the Contracts in the UTI Portfolio, as more fully described in the UTI Supplement. Thereafter, during any period during which there are no monies on deposit in the Lease Funding Account, expenses of the Titling Trust will be advanced by the UTI Beneficiary as and to the extent provided in the UTI Supplement and each SUBI Supplement.
(d) DebtorAll or a portion of the funds deposited into the Lease Funding Account shall be separately invested by the Titling Trustee from time to time at the direction of the UTI Beneficiary or its designee in any of the Permitted Investments; provided, at Lender’s requesthowever, that should the terms of any Securitized Financing impose any more stringent limits on the types or tenors of permitted investments in the Lease Funding Account than are provided for in the definition of Permitted Investments, such limits shall apply thereto for the period specified in the related Transaction Documents. The Servicer is hereby made the designee of the UTI Beneficiary for such purpose. All income, gain or loss from investment of monies in the Lease Funding Account shall, unless otherwise specified in the Transaction Documents with respect to any Securitized Financing, be for the account of the UTI Beneficiary; provided that each such investment shall be made in the name of the Titling Trustee, its nominee or its Financial Intermediary. If at any time the relevant Beneficiary or its designee shall not have given the Titling Trustee a timely investment directive with respect to any account, the Titling Trustee shall invest and Lender, at Lender’s option may, give notice reinvest any monies in form acceptable to Lender, to such account(s) in a mutual fund offered by the Account Debtors: Trust Agent or an Affiliate thereof meeting the requirements of clause (i) of Debtor’s grant the definition of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recoursePermitted Investments.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect Bank's security interest in accounts shall attach to all accounts without further act on the Accountspart of Bank or Borrower. Upon request from Bank, Borrower shall provide Bank with schedules describing all accounts created or acquired by Borrower (including without limitation agings listing the names and addresses of, and without limiting Lender’s rights above:
(a) Lender may direct any or amounts owing by date by account debtors), and shall execute and deliver written assignments of all Account Debtors accounts to make payment directly Bank all in a form acceptable to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; Bank provided, however, that Lender ▇▇▇▇▇▇▇▇'s failure to execute and deliver such schedules and/or assignments shall not be obligated affect or limit Bank's security interest and other rights in any manner to make any demand or to make any inquiry as and to the nature accounts. Together with each schedule, Borrower shall furnish Bank with copies of Borrower's customers' invoices or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shallequivalent, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary original shipping or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of delivery receipts for all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guarantiesmerchandise sold, and other documents and property evidencing or securing Borrower warrants the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following genuineness thereof. Upon the occurrence and during the continuance of an Event of Default, Debtor: (i) Bank or Bank's designee may notify customers or account debtors of Bank's security interest in the Collateral and direct such customers or account debtors to make payments directly to Bank, but unless and until Bank does so or gives Borrower other written instructions, Borrower shall collect all accounts for Bank, receive in trust all payments thereon as Bank's trustee, and, deposit such collections in the Lockbox Account, if applicable. If so requested to do so from Bank, ▇▇▇▇▇▇▇▇ shall immediately pay or deliver such payment said payments to Lender Bank in the their original form as received from the account debtor and all letters of credit, advices of credit, instruments, documents, chattel paper or any similar property evidencing or constituting Collateral Notwithstanding anything to the contrary contained herein, if sales of inventory are made for cash, Borrower shall immediately deliver to Bank, in identical form, all such cash, checks, or other forms of payment which Borrower receives. The receipt of any check or other item of payment by Bank shall not be considered a payment on account until such check or other item of payment is honored when presented for payment, in which received by Debtor; event, said check or other item of payment shall be deemed to have been paid to Bank three (ii3) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and calendar days after the date Bank actually receives such check or other instruments or documents representing such item of payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Revolving Credit Note (Hall Kinion & Associates Inc)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or before the date of the first Loan, the Borrower shall establish at the Custodian (i) a securities account (the “Collateral Account”) to which all Portfolio Assets will be credited, (ii) a securities account (the “Collection Account”) into which all proceeds received in connection with the Portfolio Assets (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof) will be deposited, (iii) a securities account, which shall be a subaccount of the Collection Account, into which all interest proceeds from the Portfolio Assets and other Interest Collections will be deposited (the “Interest Collection Account”), (iv) a securities account, which shall be a subaccount of the Collection Account, into which all principal proceeds received in connection with the Portfolio Assets (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof up to the outstanding principal amount thereof) and other Principal Proceeds will be deposited (the “Principal Collection Account”), (v) a securities account (the “Trust Account”) into which all cash received by the Borrower from the issuance of Preference Shares, all Loan proceeds and any amounts transferred from the Principal Collection Account Debtors (with the consent of the Lender) or the Interest Collection Account (with the consent of the Lender) will be deposited, (vi) a securities account (the “Prepayment Reserve Account”) into which funds received by the Borrower in connection with any sale or disposition of a Portfolio Asset shall be deposited to make payment directly the extent the Borrower elects to Lender or deposit such funds in accordance with Section 2(h)(ii)(A) and (vii) a securities account (the “Delayed Drawdown Reserve Account”) into which funds related to a specified agent of LenderDelayed Drawdown Collateral Obligations will be deposited pursuant to Section 2(l). The Accounts shall be maintained in accordance with the Account Control Agreement.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due The only permitted withdrawal from or application of assets credited to become due the Collateral Account shall be to deliver such assets in connection with a sale, termination, repayment or other disposition of such asset against payment or exchange. Any cash payment received in connection with any such disposition shall be deposited into the AccountsCollection Account or paid to the Administrative Agent on behalf of the Lenders as provided herein, and any non-cash asset received in Lender’s or Debtor’s nameexchange shall be credited to the Collateral Account promptly.
(c) Lender may file The Borrower (or the Collateral Manager on behalf of the Borrower) shall instruct each obligor under the Portfolio Assets (or, with respect to any claim Agented Asset, the paying agent) to deliver all proceeds in respect of the Borrower Collateral to the Collection Account. The Borrower shall (or shall cause the Collateral Manager to), on a daily basis (on each Business Day), identify collections received in the Collection Account on the second prior Business Day in connection with the Portfolio Assets as either Principal Collections or Interest Collections and take any other action notify to the Custodian of such determination. The Borrower (or the Collateral Manager on behalf of the Borrower) shall cause all Principal Collections received on behalf of the Portfolio Assets in the Collection Account to be promptly (but in any court event no later than one Business Day following receipt thereof) transferred by the Custodian to the Principal Collection Account. The Borrower (or the Collateral Manager on behalf of law or equity which Lender determines the Borrower) shall cause all Interest Collections received on behalf of the Portfolio Assets in the Collection Account to be appropriate promptly (but in any event no later than one Business Day following receipt thereof) transferred by the Custodian to the Interest Collection Account. The only permitted withdrawal from or application of funds on deposit in the Collection Account, Principal Collection Account or Interest Collection Account shall be to make payments expressly provided for in this Agreement or to transfer funds to the Trust Account in connection with a Reinvestment pursuant to Section 5(d). Without limiting the foregoing, if the Termination Obligations have been paid in full, on the final Payment Date, the Borrower shall apply amounts in the Interest Collection Account (and to the extent such amounts are insufficient, amounts in the Principal Collection Account) for the purpose of collecting any or all payment of the AccountsSubordinated Management Fee to the Collateral Manager; provided, however, that Lender however if such amounts are insufficient no further payment shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all made of the AccountsSubordinated Management Fee after the final Payment Date.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice The only permitted withdrawals from or application of funds on deposit in form acceptable the Trust Account shall be to Lender, to the Account Debtors: either (i) of Debtor’s grant of a security interest make prepayments on outstanding Loans in the Accounts to Lender; and accordance with Section 2(h) or other payments expressly provided for in this Agreement, (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender purchase Assets or (iii) deposit funds in Lender’s good faith business judgment determines the Delayed Drawdown Reserve Account pursuant to be necessary or appropriate. GENERAL SECURITY AGREEMENTSection 2(l).
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals The only permitted withdrawals from or application of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts funds on deposit in the same form as received by Debtor, each of which Delayed Drawdown Reserve Account shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: either (i) any shortage make additional payments with respect to a Delayed Drawdown Collateral Obligation pursuant to Section 2(l) or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results deposit in the loss Principal Collection Account pursuant to Section 2(l) as a result of a sale of a Delayed Drawdown Collateral Obligation or impairment an irrevocable reduction of the DebtorBorrower’s Account, including any act or omission which results in additional payment obligations under a Delayed Drawdown Collateral Obligation pursuant to the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsrelated Underlying Instruments.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Credit Agreement (JMP Group Inc.)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any On or all Account Debtors to make payment directly to Lender or to before the Closing Date the Seller -------- shall establish in its name a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection segregated account with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as a commercial bank satisfactory to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce Managing Facility Agent (the payment of any or all of "Collection Account"). Upon the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the ------------------ occurrence and during the continuance of an Event a Remittance Event, and unless the Servicer has provided a Servicer Letter of DefaultCredit in accordance with subsection 2.15(a), Debtor: the Seller or the Servicer shall within two Business Days after its receipt, (i) shall immediately pay or deliver such payment to Lender in the original form in which deposit all Collections received by Debtor; it directly into the Collection Account and (ii) transfer or cause to be transferred to the Concentration Account any Collections so deposited. Any amounts received by the Seller and not related to the Purchased Receivables or the related Contracts or Financed Aircraft shall endorse not be deposited into the Collection Account. Any amounts at any time on deposit in the Collection Account shall be transferred only to Lenderthe Concentration Account and to no other deposit or other account (including, but not limited to, any account or sub-account maintained pursuant to Raytheon's cash management system). The Seller hereby grants to the Managing Facility Agent for the ratable benefit of the Purchasers a security interest in the Collection Account and all amounts from time to time on deposit therein to secure the Obligations. The Seller shall have no right to withdraw any amounts on deposit in the Collection Account.
(b) On or before the Closing Date there shall be established with recourseand in the name of the Managing Facility Agent a segregated account (the "Concentration Account") which shall be maintained as a cash collateral account --------------------- subject to the exclusive dominion and control of the Managing Facility Agent for the ratable benefit of the Purchasers. The Seller hereby grants to the Managing Facility Agent for the ratable benefit of the Purchasers a security interest in any of its right, title and interest in the Concentration Account and all checksamounts from time to time on deposit therein and all income from the investment of such amounts to secure, draftsin each case, money ordersthe Obligations. Funds on deposit from time to time in the Concentration Account shall bear interest at the then prevailing rate paid by the Managing Facility Agent for deposit accounts with similar amounts on deposit from time to time. If at any time funds on deposit in the Concentration Account are greater than $100,000, notesthe Managing Facility Agent may, but shall not be required to, unless it receives a request from the Seller or Raytheon, invest such funds in Cash Equivalents with maturities not later than the next succeeding Settlement Date, to the extent such requested Cash Equivalents are available for investment. Any investment request by the Seller or Raytheon shall be given to the Managing Facility Agent one Business Day prior to the day the investment is to be made (which shall be a Business Day in New York, New York and San Francisco, California) and shall specify the particular Cash Equivalents and maturities thereof. Any interest or investment earnings on amounts in the Concentration Account on related investments shall be retained in the Concentration Account to be withdrawn in accordance with this subsection 2.14(b). The Managing Facility Agent shall have the right to withdraw amounts from the Concentration Account to make the payments required to be made hereunder from Collections. Neither the Managing Facility Agent nor any Purchaser shall have any responsibility for any such investment and the Managing Facility Agent shall be permitted to liquidate any such investment, without liability for any loss occurring by reason of such liquidation, to the extent necessary to make payments and distributions under this Agreement. The Seller shall have no right to withdraw amounts on deposit from time to time in the Concentration Account.
(i) On or before the Closing Date there shall be established with and in the name of the Managing Facility Agent a segregated trust account comprised of two segregated sub-accounts, the Seller cash collateral sub-account (the "Seller Cash Collateral Sub-Account") and the RAC ---------------------------------- cash collateral sub-account (the "RAC Cash Collateral Sub-Account," the Seller ------------------------------- Cash Collateral Sub-Account and the RAC Cash Collateral Sub-Account being referred to collectively as the "Cash Collateral Account") which shall be ----------------------- maintained as a cash collateral account subject to the exclusive dominion and control of the Managing Facility Agent for the ratable benefit of the Purchasers. The Seller hereby grants to the Managing Facility Agent for the ratable benefit of the Purchasers a first priority security interest in the Cash Collateral Account and all amounts on deposit from time to time therein and all income from the investment of such amounts to secure, in each case, the Obligations. Funds on deposit from time to time in the Seller Cash Collateral Sub-Account shall bear interest at the then prevailing rate paid by the Managing Facility Agent for deposit accounts with similar amounts on deposit from time to time. If at any time funds on deposit in the Seller Cash Collateral Sub-Account are greater than $100,000, the Managing Facility Agent may, but shall not be required to, unless it receives a request from the Seller, invest funds on deposit in the Seller Cash Collateral Sub-Account in Cash Equivalents with maturities not later than the next succeeding Settlement Date (or such other instruments maturities as the Seller shall request and the Managing Facility Agent shall approve), to the extent such requested Cash Equivalents are available for investment. Any investment request by the Seller shall be given to the Managing Facility Agent one Business Day prior to the day the investment is to be made (which shall be a Business Day in New York, New York and San Francisco, California) and shall specify the particular Cash Equivalents and maturities thereof. Any interest or documents representing such payment; investment earnings on amounts in the Seller Cash Collateral Sub-Account or related investments shall be retained in the Seller Cash Collateral Sub-Account to be withdrawn in accordance with paragraphs (ii), (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) of this subsection 2.14(c). Neither the Managing Facility Agent nor any Purchaser shall hold have any responsibility for any such investment and the Managing Facility Agent shall be permitted to liquidate any such investment, without liability for any loss occurring by reason of such liquidation, to the extent necessary to make payments and distributions under this Agreement. The Seller shall have no right to withdraw amounts on deposit from time to time in the Cash Collateral Account.
(ii) If on any Settlement Date on which the Seller is required to repurchase Defaulted Receivables pursuant to subsection 2.10 and fails for any reason to repurchase such Defaulted Receivables or substitute for such Defaulted Receivables pursuant to subsection 2.13, whether or not RAC fails to repurchase such Defaulted Receivables under the Repurchase Agreement, the Managing Facility Agent may withdraw from amounts on deposit in the Seller Cash Collateral Sub-Account on account of such Defaulted Receivable an amount equal to the lesser of (A) the Repurchase Price for such Defaulted Receivable plus any accrued and unpaid interest thereon required to be paid by subsection 2.10 and (B) the amount then on deposit in the Seller Cash Collateral Sub-Account. It is specifically understood and agreed that amounts on deposit in the Seller Cash Collateral Sub-Account, whether on account of 25% Repurchase Receivables, 75% Repurchase Receivables or 90% Repurchase Receivables, may be withdrawn as aforesaid on account of any Defaulted Receivable, regardless of the RARC Repurchase Percentage associated therewith or whether the RAC Repurchase Obligation shall be outstanding. Any amounts so withdrawn shall be deposited into the Concentration Account and allocated and distributed pursuant to subsections 2.15 and 2.16, respectively. The Seller agrees with the Managing Facility Agent and the Purchasers to deposit into the Seller Cash Collateral Sub-Account, without any requirement for notice or demand therefor, the lesser of the amount withdrawn therefrom or the sum of the RARC Repurchase Obligation then in effect on the date such withdrawal is made, plus interest thereon at a rate per annum equal to the Default Rate for the period from such date of withdrawal to such date of deposit. Deposit of amounts into the Seller Cash Collateral Sub-Account pursuant to the preceding sentence shall, to the extent of such deposit, satisfy the Seller's obligation to repurchase such Defaulted Receivable pursuant to subsection 2.10.
(iii) If the Seller or the Servicer (if then Raytheon Credit or any Affiliate thereof) shall fail to make any deposit, payment separate or transfer of funds required to be made by the Seller or the Servicer under this Agreement or any other document executed and apart delivered in connection herewith, including, without limitation, any payment, deposit or transfer of funds or payment of any indemnity required to be made pursuant to subsection 2.7(b), 2.10, 2.10A, 2.11, 2.12, 2.18 or 9.1 (each such payment, deposit or transfer, a "Reimbursable ------------ Obligation"), then the Managing Facility Agent with the consent of the Majority ---------- Purchasers may, in addition to any similar rights in favor of the Managing Facility Agent under the Repurchase Agreement, withdraw from Debtor’s the Seller Cash Collateral Sub-Account on the date such Reimbursable Obligation is due hereunder an amount equal to the lesser of (A) such Reimbursable Obligation and (B) the amount then on deposit in the Seller Cash Collateral Sub-Account. The Seller agrees with the Managing Facility Agent and the Purchasers to deposit in the Seller Cash Collateral Sub-Account, without any requirement for notice or demand therefor, the amount withdrawn on the date such withdrawal is made, plus interest thereon at a rate per annum equal to the Default Rate for the period from such date of withdrawal to such date of deposit.
(iv) No amounts on deposit in the Seller Cash Collateral Sub- Account (including interest or investment earnings) shall be released to the Seller until the Outstanding Purchase Price is reduced to zero and all other funds and property amounts owing to the Managing Facility Agent or any Purchaser hereunder are paid in an express trust for Lender until paid or delivered to Lender.full, provided, that, -------- ----
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct Maintain all of its and all of its Subsidiaries’ operating accounts and the Cash Collateral Account with SVB and SVB’s Affiliates, other than (i) Excluded Accounts, (ii) the ▇▇▇▇▇ Fargo Accounts and (iii) accounts with payment transmitters set forth on Schedule 6.8(a) hereto (the “Payment Transmitter Accounts”), provided that if the aggregate amount of funds in the Payment Transmitter Accounts exceeds Five Hundred Thousand Dollars ($500,000.00) at any or time, Borrower shall, within five (5) Business Days after the occurrence thereof, transfer such excess amounts to an account of Borrower at SVB. In addition, (i) at all Account Debtors times prior to make payment directly to Lender or an IPO, Borrower and all of its Subsidiaries shall maintain all excess cash with SVB and SVB’s Affiliates (excluding cash maintained in the Excluded Accounts, ▇▇▇▇▇ Fargo Accounts and Payment Transmitter Accounts) and (ii) at all times after an IPO, Borrower and all of its Subsidiaries shall maintain at least fifty percent (50.0%) of all excess cash (excluding cash maintained in the Excluded Accounts, ▇▇▇▇▇ Fargo Accounts and Payment Transmitter Accounts) with SVB and SVB’s Affiliates, provided that any excess cash not maintained with SVB and SVB’s Affiliates (excluding cash maintained in the Excluded Accounts, ▇▇▇▇▇ Fargo Accounts and Payment Transmitter Accounts) shall be subject to a specified agent Control Agreement in favor of LenderLender pursuant to the terms of Section 6.8(b) hereof. Any Guarantor shall maintain all operating accounts and excess cash with SVB and SVB’s Affiliates.
(b) In addition to and without limiting the restrictions in (a), Borrower shall provide Lender may demandfive (5) days prior written notice before establishing any Collateral Account at or with any bank or financial institution other than SVB or SVB’s Affiliates. For each Collateral Account that Borrower at any time maintains, collect, receive Borrower shall cause the applicable bank or financial institution at or with which any Collateral Account is maintained to execute and give receipts for any and all money and deliver a Control Agreement or other property due or appropriate instrument with respect to become due such Collateral Account to perfect Lender’s Lien in connection such Collateral Account in accordance with the Accounts, in terms hereunder which Control Agreement may not be terminated without the prior written consent of Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all . The provisions of the Accounts; provided, however, that Lender previous sentence shall not be obligated in any manner apply to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and Excluded Accounts, (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary Payment Transmitter Accounts, or appropriate. GENERAL SECURITY AGREEMENT
(eiii) Debtor shalldeposit accounts exclusively used for payroll, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guarantiespayroll taxes, and other documents employee wage and property evidencing benefit payments to or securing for the Accounts in the same form as received by Debtor, each benefit of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes Borrower’s employees and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment identified to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to LenderBorrower as such.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (BigCommerce Holdings, Inc.)
Accounts. With (a) Unless otherwise specified in the UTI Supplement, the Titling Trustee will establish and maintain with respect to the Accounts, Undivided Trust Interest a Lease Funding Account satisfying the definition of an Eligible Account. The Lease Funding Account shall be established and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due maintained in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all name of the AccountsTitling Trustee on behalf of the UTI Sub-Trust. None of the Grantor, any Beneficiary or, subject to Section 7.02(c), the holder or pledgee of any UTI Certificate or SUBI Certificate shall have any right to draw on the Lease Funding Account without the express written consent of the Titling Trustee; provided, however, that Lender the Titling Trustee, with the express written consent of the related UTI Beneficiary, shall so consent to the extent provided for in the documentation relating to any Securitized Financing of such UTI Certificate or SUBI Certificate. The Lease Funding Account shall only contain funds relating to UTI Assets.
(b) For so long as the Monthly Remittance Conditions are satisfied, the Servicer shall not be obligated required to remit to the Lease Funding Account collections in respect of any Titling Trust Assets allocable to the Lease Funding Account on a daily basis but shall be entitled to retain such collections, without segregation from its other funds, until the Business Day preceding the date identified as a "Distribution Date" in the related UTI Supplement, at which time the Servicer shall so remit all such collections in immediately available funds; provided that (i) investments on which the Trust Agent is the obligor (including repurchase agreements as to which it, in its commercial capacity, is liable as principal), may mature on the Distribution Date, and (ii) investments made of Principal Collections or Interest Collections on deposit in a SUBI Collection Account may mature on such dates as specified by the Titling Trustee at the Servicer's direction so as to maintain the availability of sufficient cash to make the payments described in any manner SUBI Supplement or related SUBI Servicing Supplement. Notwithstanding the foregoing, commencing with the first day of the first period identified as a "Collection Period" in the related UTI Supplement or SUBI Supplement, as the case may be, that begins at least two Business Days after the day on which any Monthly Remittance Conditions cease to make any demand be satisfied and for so long as the Monthly Remittance Conditions are not satisfied, all collections in respect of the UTI Assets or to make any inquiry the related SUBI Assets, as applicable, then held by the Servicer shall be immediately so deposited and all such future collections shall be so remitted by the Servicer to the nature appropriate account in accordance with this Agreement or sufficiency the related SUBI Servicing Supplement, as applicable, on a daily basis within two Business Days after receipt thereof. Each SUBI Servicing Supplement shall also provide (i) the terms on which any other funds received by any Servicer, including funds transferred from any of the SUBI Collection Accounts to the extent of (1) the net investment value (as recorded on the books of the Titling Trust) of any payment Contracts and Leased Vehicles allocated to a SUBI in a Trust Asset Transfer, (2) reimbursement of any Servicer Advances provided for in any Securitized Financing with respect to such SUBI or (3) funding for such SUBI's share of any allocable Titling Trust Expenses will be deposited by the Servicer into the Lease Funding Account (or transferred directly to the Servicer, Grantor or UTI Beneficiary directly, as appropriate) and (ii) whether and under what circumstances any other funds received by itthe Servicer with respect to a SUBI Asset, including income with respect to any investment made in any SUBI Account, shall be deposited by the Servicer into an appropriate SUBI Account.
(c) Except as otherwise provided in Section 7.03, a UTI Supplement or a SUBI Supplement, all Titling Trust Expenses shall be paid out of the Lease Funding Account or from monies held by the Servicer and allocable thereto or distributable in respect thereof, including: (i) any reimbursement due to present the Servicer for payments from its own operating accounts in order to fund (A) amounts due to Dealers in payment for the assignment to the Titling Trustee of Contracts and Leased Vehicles occurring prior to the Titling Trustee's notice to the Servicer to cease acquiring Contracts and Leased Vehicles on behalf of the Titling Trustee given pursuant to Section 7.02(c)(ii) and (B) any other Advances made by the Servicer with the consent of the Titling Trustee (to be given at the direction of the UTI Beneficiary or file any claim or take any action to collect or enforce in accordance with the payment terms of any Securitized Financing), with respect to any Contract or all Leased Vehicle, (ii) Servicer fees (and expenses, if any, not covered by the Servicer fee under any SUBI Servicing Supplement), (iii) Titling Trustee fees and expenses and (iv) other Titling Trust Expenses, if any; provided, however, that, to the extent that any Liability of the AccountsTitling Trustee or any Beneficiary is incurred in respect of Affected Trust Assets allocated to one or more Sub-Trusts, then such Liability shall be borne in accordance with Section 3.04, and the Titling Trustee, at the direction of the Servicer, shall transfer periodically from the related SUBI Collection Accounts to the Lease Funding Account each Sub-Trust's appropriate share of such aggregate Liabilities of the Titling Trust. Prior to the funding of the Lease Funding Account from collections on outstanding Contracts or otherwise, the UTI Beneficiary will advance monies to fund the origination of Contracts as described in the UTI Supplement. The UTI Supplement or any SUBI Supplement may provide that all or any portion of the collections on the related UTI Assets or SUBI Assets will be deposited in the Lease Funding Account or the related SUBI Lease Funding Account for a period of time specified therein. Prior to the creation of a SUBI, the expenses of the Titling Trust will be advanced by the UTI Beneficiary or funded from collections on the Contracts in the UTI Portfolio, as more fully described in the UTI Supplement. Thereafter, during any period during which there are no monies on deposit in the Lease Funding Account, expenses of the Titling Trust will be advanced by the UTI Beneficiary as and to the extent provided in the UTI Supplement and each SUBI Supplement.
(d) DebtorAll or a portion of the funds deposited into the Lease Funding Account shall be separately invested by the Titling Trustee from time to time at the direction of the UTI Beneficiary or its designee in any of the Permitted Investments; provided, at Lender’s requesthowever, that should the terms of any Securitized Financing impose any more stringent limits on the types or tenors of permitted investments in the Lease Funding Account than are provided for in the definition of Permitted Investments, such limits shall apply thereto for the period specified in the related Transaction Documents. The Servicer is hereby made the designee of the UTI Beneficiary for such purpose. All income, gain or loss from investment of monies in the Lease Funding Account shall, unless otherwise specified in the Transaction Documents with respect to any Securitized Financing, be for the account of the UTI Beneficiary; provided that each such investment shall be made in the name of the Titling Trustee, its nominee or its Financial Intermediary. If at any time the relevant Beneficiary or its designee shall not have given the Titling Trustee a timely investment directive with respect to any account, the Titling Trustee shall invest and Lender, at Lender’s option may, give notice reinvest any monies in form acceptable to Lender, to such account(s) in a mutual fund offered by the Account Debtors: Trust Agent meeting the requirements of clause (i) of Debtor’s grant the definition of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recoursePermitted Investments.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Trust and Servicing Agreement (Toyota Auto Lease Trust 1997-A)
Accounts. With respect Borrower hereby grants to the Accounts, Agent and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of Lenders a security interest in all rights of Borrower in and to the Accounts (including all subaccounts thereof) and all sums on deposit therein as additional security for the Obligations. Borrower shall cause all banks or financial institutions other than Agent which are holding any Account to Lender; execute and deliver to Agent an Account Agreement with respect to such Account. Subject to the rights of Borrower expressly set forth herein to make withdrawals from, and otherwise give instructions with respect to, the Accounts, Borrower hereby acknowledges and agrees that Agent shall have sole dominion and control of the Accounts. Borrower shall not close any Account without obtaining the prior consent of Agent. Borrower shall not open any Account other than the Accounts open as of the Closing Date (whether in substitution of another Account or otherwise) (a) without delivering to Agent at least ten (10) Business Days prior notice of Borrower’s intention to open a new Account and (b) unless, (i) the bank or other financial institution at which such Account is to be opened is reasonably acceptable to Agent and (ii) prior to the opening of such additional information Account, Borrower shall have delivered to Agent an Account Agreement with respect to such Account. Borrower shall maintain the Accounts and instructions concerning Lender’s rights under this Security shall pay all fees and charges with respect thereto when due, and shall keep in full force and effect the Account Agreement with respect thereto. So long as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallno Event of Default has occurred and is continuing, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals exception of all instruments, chattel paper, security agreements, guaranties, interest allocated to the “Tax and other documents and property evidencing or securing the Accounts Insurance Premium Reserve Sub-Account” (as defined such term is defined in the same form as received by Debtor, each of which Cash Management Agreement) all interest earned on amounts deposited in any Accounts (other than the Operating Account) shall be properly endorsed by Debtor allocated to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases Operating Account on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible a monthly basis. No funds in any way or under any circumstances to Debtor or Account may be commingled with any other party for: (i) any shortage or discrepancy infunds of Borrower, damage to, or loss or destruction ofManager, any goods, the sale Affiliate of Borrower or Manager or with any other disposition of which gives rise to an Person or with any funds contained in any other Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results . All sums held in the loss or impairment of ________________________________________________________________________________________________________________________ Accounts shall constitute additional security for the Debtor’s Account, including Obligations. At any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts time following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender Agent may apply any funds on deposit in the original form Accounts as set forth in which received Section 9.6 hereof subject to the rights of Lessees in and to any Security Deposits and otherwise have the rights and remedies with respect to the Accounts set forth in the Loan Documents, at law or equity. Neither Agent nor Lenders shall be liable for any loss of interest on or any penalty or charge assessed against the funds in, payable on, or credited to any Account as a result of the exercise by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with Agent of any of Debtor’s other funds its rights, remedies or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid obligations under any Loan Document, at law or delivered to Lenderequity.
Appears in 1 contract
Sources: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Accounts. With respect The Indenture Trustee shall establish the Issuance Fund, the Revenue Fund, the Reserve Fund, the Pre-Funding Account and the Collection Account (collectively, the "Accounts") in the name of the Indenture Trustee for the benefit of the Noteholders and the Note Insurer, as their interests may appear. The Collection Account shall be a segregated account established with the Collection Account Depository and the remaining foregoing Accounts and funds shall be segregated accounts established with the Corporate Trust Office of the Indenture Trustee. Each Account shall be an Eligible Account; provided, that if an Account ceases to be an Eligible Account, all funds in such Account shall be deposited into an Eligible Account within 30 days of the Accountsdate an Authorized Officer of the Indenture Trustee first has knowledge of, and without limiting Lender’s rights above:
or receives written notice of, the fact that an Account is no longer an Eligible Account. Amounts held in the Accounts (aother than the Collection Account) Lender shall be invested by the Indenture Trustee, upon the written direction of the Administrator, in Eligible Investments; provided, that amounts paid under the Note Guaranty Insurance Policy shall not be invested. Each investment shall mature no later than the applicable Transfer Date, except that investments in funds or accounts under which Wel▇▇ ▇▇rgo Bank Minnesota, National Association or an Affiliate thereof is the investment adviser or the investment manager may direct any or all Account Debtors be held until the date on which funds are intended to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts be used. The Indenture Trustee shall not be responsible for any losses incurred on any such investments unless the Indenture Trustee or an Affiliate thereof is the obligor under such investments. Any written investment direction from the Administrator shall certify that any such investment is authorized by this Section 5.01 and all money and other property due is an Eligible Investment. All amounts received as earnings on or to become due in connection with the Accounts, in Lender’s income from any investments or Debtor’s name.
(c) Lender may file any claim and take any other action reinvestments of funds in any court of law or equity which Lender determines Account shall be credited to be appropriate for the purpose of collecting any or all of the Accountssuch Account; provided, however, that Lender on each Transfer Date, the Indenture Trustee shall not be obligated in transfer all amounts received as earnings on or income from any manner to make any demand investments or to make any inquiry as to the nature or sufficiency reinvestments of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest funds in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines the Revenue Fund prior to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for making any of the following arising from Lender’s transfers or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible payments referred to in any way or under any circumstances to Debtor or any other party for: (iSection 5.05(c) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:5.1 Project Revenue Account
(a) Lender may direct any Prior to the Initial Funding Date the Borrower shall establish and maintain with the Agent, at the Borrower’s sole expense, a Project Revenue Account which shall be opened in the name of the Borrower. The Project Revenue Account shall be subject to the Security in favour of the Agent, for its own benefit and for the benefit of the Secured Parties. The Project Revenue Account shall at all times be subject to the Blocked Accounts Agreement and, prior to the Initial Funding Date, subject to control of the Borrower (subject to the terms of this Agreement and the Blocked Accounts Agreement), except upon the occurrence, and during the continuance, of a Default or an Event of Default when the Project Revenue Account shall be subject to the control of the Agent. In order to give effect to the purpose and intent of the Blocked Accounts Agreement, the Borrower authorizes and directs the Agent to deliver an activation notice under the Blocked Accounts Agreement upon the occurrence of a Default or an Event of Default. On and after the Initial Funding Date the Borrower shall cease to have control over the Project Revenue Account and the Project Revenue Account shall at all Account Debtors times thereafter be subject to make payment directly to Lender the control of the Agent, both before and after a Default or to a specified agent an Event of LenderDefault.
(b) Lender may demandPrior to the Initial Funding Date, collectthe Borrower shall deposit or cause to be deposited directly upon receipt into the Project Revenue Account:
(i) the proceeds of the Sponsors Contributions and any other capital contributions made by the Sponsors (directly or indirectly);
(ii) the proceeds of all Government Funds remaining available to the Borrower;
(iii) all Cash Revenues;
(iv) all amounts under any Project Document;
(v) all Net Disposal Amounts of any asset of the Borrower;
(vi) all Net Disposal Amounts or other enforcement action (net of the costs and expenses of such action) taken pursuant to Article 10; and
(vii) all other funds and amounts of any kind received by or on behalf of the Borrower from any source, receive including amounts pursuant to an equity contribution by the Sponsors, Insurance Proceeds and give receipts for any and all money and other property due or to become due amounts in connection with respect of warranty proceeds received by the Accounts, in Lender’s or Debtor’s name.Borrower,
(c) Lender may file any claim On and take any other action in any court of law or equity which Lender determines to be appropriate for after the purpose of collecting any or all date of the Accounts; providedInitial Funding Date, howeverthe proceeds of each Drawdown shall, that Lender shall not subject to Article 6, be obligated in any manner to make any demand or to make any inquiry as advanced by the Agent to the nature or sufficiency of any payment received Borrower by it, or bank transfer to present or file any claim or take any action to collect or enforce the payment of any or all credit of the AccountsProject Revenue Account.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Loan Agreement (BioAmber Inc.)
Accounts. With (a) Unless otherwise specified in the UTI Supplement, the Titling Trustee will establish and maintain with respect to the Accounts, Undivided Trust Interest a Lease Funding Account satisfying the definition of an Eligible Account. The Lease Funding Account shall be established and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due maintained in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all name of the AccountsTitling Trustee on behalf of the UTI Sub-Trust. None of the Grantor, any Beneficiary or, subject to Section 7.02(c), the holder or pledgee of any UTI Certificate or SUBI Certificate shall have any right to draw on the Lease Funding Account without the express written consent of the Titling Trustee; provided, however, that Lender the Titling Trustee, with the express written consent of the related UTI Beneficiary, shall so consent to the extent provided for in the documentation relating to any Securitized Financing of such UTI Certificate or SUBI Certificate. The Lease Funding Account shall only contain funds relating to UTI Assets.
(b) For so long as the Monthly Remittance Conditions are satisfied, the Servicer shall not be obligated required to remit to the Lease Funding Account collections in respect of any Titling Trust Assets allocable to the Lease Funding Account on a daily basis but shall be entitled to retain such collections, without segregation from its other funds, until the Business Day preceding the date identified as a "Distribution Date" in the related UTI Supplement, at which time the Servicer shall so remit all such collections in immediately available funds; provided that (i) investments on which the Trust Agent is the obligor (including repurchase agreements as to which it, in its commercial capacity, is liable as principal), may mature on the Distribution Date, and (ii) investments made of Principal Collections or Interest Collections on deposit in a SUBI Collection Account may mature on such dates as specified by the Titling Trustee at the Servicer's direction so as to maintain the availability of sufficient cash to make the payments described in any manner SUBI Supplement or related SUBI Servicing Supplement. Notwithstanding the foregoing, commencing with the first day of the first period identified as a "Collection Period" in the related UTI Supplement or SUBI Supplement, as the case may be, that begins at least two Business Days after the day on which any Monthly Remittance Conditions cease to make any demand be satisfied and for so long as the Monthly Remittance Conditions are not satisfied, all collections in respect of the UTI Assets or to make any inquiry the related SUBI Assets, as applicable, then held by the Servicer shall be immediately so deposited and all such future collections shall be so remitted by the Servicer to the nature appropriate account in accordance with this Agreement or sufficiency the related SUBI Servicing Supplement, as applicable, on a daily basis within two Business Days after receipt thereof. Each SUBI Servicing Supplement shall also provide (i) the terms on which any other funds received by any Servicer, including funds transferred from any of the SUBI Collection Accounts to the extent of (1) the net investment value (as recorded on the books of the Titling Trust) of any payment Contracts and Leased Vehicles allocated to a SUBI in a Trust Asset Transfer, (2) reimbursement of any Servicer Advances provided for in any Securitized Financing with respect to such SUBI or (3) funding for such SUBI's share of any allocable Titling Trust Expenses will be deposited by the Servicer into the Lease Funding Account (or transferred directly to the Servicer, Grantor or UTI Beneficiary directly, as appropriate) and (ii) whether and under what circumstances any other funds received by itthe Servicer with respect to a SUBI Asset, including income with respect to any investment made in any SUBI Account, shall be deposited by the Servicer into an appropriate SUBI Account.
(c) Except as otherwise provided in Section 7.03, a UTI Supplement or a SUBI Supplement, all Titling Trust Expenses shall be paid out of the Lease Funding Account or from monies held by the Servicer and allocable thereto or distributable in respect thereof, including: (i) any reimbursement due to present the Servicer for payments from its own operating accounts in order to fund (A) amounts due to Dealers in payment for the assignment to the Titling Trustee of Contracts and Leased Vehicles occurring prior to the Titling Trustee's notice to the Servicer to cease acquiring Contracts and Leased Vehicles on behalf of the Titling Trustee given pursuant to Section 7.02(c)(ii) and (B) any other Advances made by the Servicer with the consent of the Titling Trustee (to be given at the direction of the UTI Beneficiary or file any claim or take any action to collect or enforce in accordance with the payment terms of any Securitized Financing), with respect to any Contract or all Leased Vehicle, (ii) Servicer fees (and expenses, if any, not covered by the Servicer fee under any SUBI Servicing Supplement), (iii) Titling Trustee fees and expenses and (iv) other Titling Trust Expenses, if any; provided, however, that, to the extent that any Liability of the AccountsTitling Trustee or any Beneficiary is incurred in respect of Affected Trust Assets allocated to one or more Sub-Trusts, then such Liability shall be borne in accordance with Section 3.04, and the Titling Trustee, at the direction of the Servicer, shall transfer periodically from the related SUBI Collection Accounts to the Lease Funding Account each Sub-Trust's appropriate share of such aggregate Liabilities of the Titling Trust. Prior to the funding of the Lease Funding Account from collections on outstanding Contracts or otherwise, the UTI Beneficiary will advance monies to fund the origination of Contracts as described in the UTI Supplement. The UTI Supplement or any SUBI Supplement may provide that all or any portion of the collections on the related UTI Assets or SUBI Assets will be deposited in the Lease Funding Account or the related SUBI Lease Funding Account for a period of time specified therein. Prior to the creation of a SUBI, the expenses of the Titling Trust will be advanced by the UTI Beneficiary or funded from collections on the Contracts in the UTI Portfolio, as more fully described in the UTI Supplement. Thereafter, during any period during which there are no monies on deposit in the Lease Funding Account, expenses of the Titling Trust will be advanced by the UTI Beneficiary as and to the extent provided in the UTI Supplement and each SUBI Supplement.
(d) DebtorAll or a portion of the funds deposited into the Lease Funding Account shall be separately invested by the Titling Trustee from time to time at the direction of the UTI Beneficiary or its designee in any of the Permitted Investments; provided, at Lender’s requesthowever, that should the terms of any Securitized Financing impose any more stringent limits on the types or tenors of permitted investments in the Lease Funding Account than are provided for in the definition of Permitted Investments, such limits shall apply thereto for the period specified in the related Transaction Documents. The Servicer is hereby made the designee of the UTI Beneficiary for such purpose. All income, gain or loss from investment of monies in the Lease Funding Account shall, unless otherwise specified in the Transaction Documents with respect to any Securitized Financing, be for the account of the UTI Beneficiary; provided that each such investment shall be made in the name of the Titling Trustee, its nominee or its Financial Intermediary. If at any time the relevant Beneficiary or its designee shall not have given the Titling Trustee a timely investment directive with respect to any account, the Titling Trustee shall invest and Lender, at Lender’s option may, give notice reinvest any monies in form acceptable to Lender, to such account(s) in a mutual fund offered by the Account Debtors: Trust Agent or an affiliate thereof meeting the requirements of clause (i) of Debtor’s grant the definition of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recoursePermitted Investments.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the AccountsIn furtherance of, and without limiting Lender’s not in limitation of, the rights aboveof the Secured Party set forth in Section 8 hereof, at any time and from time to time after an Event of Default has occurred hereunder:
(a) Lender Commencing immediately upon Secured Party's oral or written request, Debtor hereby specifically covenants and agrees to turn over, by mailing or otherwise delivering to the offices of Secured Party, on the day of Debtor's receipt thereof, and in the exact form received by Debtor, all cash, checks, drafts, notes and other evidences of payment received by Debtor in full or part payment of said Accounts, with full power in Secured Party to endorse and deposit such checks and other remittances in its own banking depositories, whether said checks or other remittances are made payable to the order of Secured Party or Debtor. Debtor shall and hereby agrees to submit to Secured Party with all remittances a report in such form as Secured Party from time to time may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lenderrequire.
(b) Lender Secured Party may demandnotify Account Debtors of Debtor in writing that the Accounts have been assigned to Secured Party and that the Obligations of the Account Debtors to Debtor shall be paid directly to Secured Party. Secured Party shall simultaneously notify Debtor in writing of such notice to Account Debtors. Upon request of Secured Party, collectat any time after an event of default has occurred hereunder, receive Debtor shall so notify Account Debtors and give receipts for any and shall indicate on all money and other property b▇▇▇▇▇▇▇ to Account Debtors that all monies due or owing thereon are payable directly to become due in connection with Secured Party. Secured Party shall further have the Accountsright at any time, in Lender’s and from time to time after an event of default has occurred hereunder directly or Debtor’s name.
through its agents, (ci) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting collect any or all of the Accounts, and in its own or Debtor's name, to sell, transfer, set over, release, compromise, adjust, discharge or extend the time for payment or performance of the whole or any part of the Accounts or grant any discounts, allowances or credits thereon or bring any suit to enforce payments thereof; provided(ii) to arrange for verification of any of the Accounts, howeverunder reasonable procedures, directly with Account Debtors, or by other methods; and (iii) to do all acts and things necessary or incidental to the effectuation of the purposes set forth in (i) and (ii) next preceding, including the right of suit; Debtor hereby ratifying and approving all that Lender Secured Party may do by virtue hereof. Granting extensions to Account Debtors or to Debtor, suffering any delay, or permitting any breach by Debtor or Account Debtors in connection with any transactions between the parties hereto, shall in no way be construed as a waiver of or license to commit any subsequent breach, nor as a waiver of any further or other delays or of any of the rights of Secured Party against Debtor or Account Debtors, and Debtor's liability shall in no way be restricted, diminished or abated by virtue of any extensions or privileges so granted.
(c) The remedies, rights and powers granted to Secured Party in paragraphs (a) and (b) of this Section 9 are solely to protect the interest of Secured Party and shall not impose any duty upon Secured Party to exercise any such remedy, right or power. If Secured Party shall exercise any such remedy, right or power, Secured Party shall not be obligated accountable for more than it actually receives as a result of the exercise of such remedy, right or power, but, in any manner to make event, Secured Party shall not be accountable except for gross negligence or willful misconduct. Neither Secured Party nor any demand of its officers, agents or to make attorneys will otherwise be liable for any inquiry as to the nature acts or sufficiency omissions nor for any error of any payment received by it, judgment or to present mistake of fact or file any claim or take any action to collect or enforce the payment of any or all of the Accountslaw.
(d) DebtorWhether or not notice of assignment has been given, at Lender’s requestDebtor will not, shallwithout the express written consent of Secured Party, and Lenderrelease, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary compromise or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including or any act guaranty, security or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representationslien therefor, or the warranties under grant any other agreement discounts, allowances or document relating credits thereon, or bring any suit to any or all of the Collateral, including the Accountsenforce payment thereof.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect Notwithstanding anything to the Accountscontrary contained herein, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following after the occurrence and during the continuance of an Event of Default, Debtor: the rights of Borrower, Property Owner and each and every other Person (iexcluding Agent) with respect to Accounts, upon notice to Borrower, shall immediately terminate, and no such Person except Agent shall make any further withdrawal therefrom. Thereafter, Agent may from time to time designate such signatories with respect to the Accounts as Agent may desire, and may make or authorize withdrawals from the Accounts to pay the Obligations in whole or deliver in part and/or pay operating expenses and capital expenditures with respect to the Premises and/or the Required Improvements, including the sale and marketing thereof, and/or any other expenses, all as Agent may deem necessary or appropriate and in such payment to Lender in order as Agent may elect. Agent may notify the original form financial institutions in which received any Account is held that Borrower, Property Owner and any other Person no longer has a right to instruct such financial institution with respect to matters relating to the withdrawal, operation or administration of, or investment or application of funds on deposit in such Account. Without limiting the foregoing Agent shall have the right to cause the withdrawal of all funds on deposit in any Account and the deposit of such funds in an account established with Agent at any time following receipt by Debtor; (ii) shall endorse the financial institution in which such Account is held of a notice from Agent pursuant to Lender, the Account Agreement with recourse, all checks, drafts, money orders, notesrespect to such Account, and other instruments Borrower, on behalf of itself and Property Owner, hereby authorizes and directs such financial institutions to make payment directly to Agent of the funds in or documents representing credited to such payment; (iii) accounts, or such part thereof as Agent may request. Such financial institution shall not commingle have the absolute right to rely upon such payment with any notice without inquiring as to the accuracy of Debtorthe matters referred to in such notice and the depositories shall be fully protected by Borrower in relying upon such written notice from Agent. In the event that Agent delivers such a notice, Agent shall thereafter have the exclusive right to so instruct such financial institution. Nothing in this Section 8.6 shall be construed so as to limit or impair Agent’s other funds or property; and (iv) absolute right to have a receiver appointed following an Event of Default. All references to “Accounts” in this Section 8.6 shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderexclude the Operating Account.
Appears in 1 contract
Accounts. With respect The Indenture Trustee shall establish the Issuance Fund, the Revenue Fund, the Reserve Fund, the Pre-Funding Account and the Collection Account (collectively, the "Accounts") in the name of the Indenture Trustee for the benefit of the Noteholders and the Note Insurer, as their interests may appear. The Collection Account shall be a segregated account established with the Collection Account Depository and the remaining foregoing Accounts and funds shall be segregated accounts established with the Corporate Trust Office of the Indenture Trustee. Each Account shall be an Eligible Account; provided that if an Account ceases to be an Eligible Account, all funds in such Account shall be deposited into an Eligible Account within 30 days of the Accountsdate an Authorized Officer of the Indenture Trustee first has knowledge of, and without limiting Lender’s rights above:
or receives written notice of, the fact that an Account is no longer an Eligible Account. Amounts held in the Accounts (aother than the Collection Account) Lender shall be invested by the Indenture Trustee, upon the written direction of the Administrator, in Eligible Investments; provided that amounts paid under the Note Guaranty Insurance Policy shall not be invested. Each investment shall mature no later than the applicable Transfer Date, except that investments in funds or accounts under which ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank or an Affiliate thereof is the investment adviser or the investment manager may direct any or all Account Debtors be held until the date on which funds are intended to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts be used. The Indenture Trustee shall not be responsible for any losses incurred on any such investments unless the Indenture Trustee or an Affiliate thereof is the obligor under such investments. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investments prior to its stated maturity or the failure of the Administrator to provide written directions. Any written investment direction from the Administrator shall certify that any such investment is authorized by this Section 5.01 and all money and other property due is an Eligible Investment. All amounts received as earnings on or to become due in connection with the Accounts, in Lender’s income from any investments or Debtor’s name.
(c) Lender may file any claim and take any other action reinvestments of funds in any court of law or equity which Lender determines Account shall be credited to be appropriate for the purpose of collecting any or all of the Accountssuch Account; provided, however, that Lender on each Transfer Date, the Indenture Trustee shall not be obligated in transfer all amounts received as earnings on or income from any manner to make any demand investments or to make any inquiry as to the nature or sufficiency reinvestments of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest funds in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines the Revenue Fund prior to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for making any of the following arising from Lender’s transfers or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible payments referred to in any way or under any circumstances to Debtor or any other party for: (iSection 5.05(c) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Indenture (Capital One Auto Receivables Trust 2001-B)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Servicer shall, prior to the Closing Date, cause to be established and maintained an Eligible Deposit Account in the name "JPMorgan Chase Bank, National Association, as Indenture Trustee, as secured party from USAA Auto Owner Trust 2006-1", initially at the corporate trust department of the Indenture Trustee, which shall be designated as the "Collection Account". The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided, that the Servicer may make deposits to and direct any or all Account Debtors the Indenture Trustee in writing to make withdrawals from the Collection Account in accordance with the terms of the Basic Documents. The Collection Account will be established and maintained pursuant to an account agreement which specifies New York law as the governing law. In addition, the Collection Account shall be established and maintained at an institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account shall be held by the Indenture Trustee as secured party for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lenderthe Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account shall be made only upon the terms and conditions of the Basic Documents. If the Servicer is required to remit collections pursuant to the first sentence of Section 4.2, all amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Collection Account in specified Permitted Investments that mature not later than the Business Day immediately prior to the Payment Date for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. All interest and other income (net of losses and investment expenses) on funds on deposit in the Collection Account shall be withdrawn from the Collection Account at the written direction of the Servicer and shall be paid to the Servicer. The Indenture Trustee shall not be liable for investment losses in Permitted Investments made in accordance with directions from the Servicer. In the event that the Collection Account is no longer to be maintained at the corporate trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit Account to be established as the Collection Account within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent) and give written notice of the location and account number of such account to the Indenture Trustee.
(b) Lender may demandThe Servicer shall, collectprior to the Closing Date, receive establish and give receipts maintain an administrative subaccount within the Collection Account at the bank or trust company then maintaining the Collection Account, which subaccount shall be designated as the "Principal Distribution Account". The Principal Distribution Account is established and maintained solely for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s nameadministrative purposes.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines The Servicer shall, prior to the Closing Date, cause an Eligible Deposit Account to be appropriate for established and maintained, in the purpose of collecting any or all name "USAA Auto Owner Trust 2006-1 Certificate Distribution Account", initially at the corporate trust department of the Accounts; providedOwner Trustee, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed designated as the "Certificate Distribution Account". The Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Distribution Account pursuant to this Agreement and the Indenture shall be held by Debtor the Owner Trustee as part of the Trust Property and shall be applied as provided in the Basic Documents. In the event that the Certificate Distribution Account is no longer to Lenderbe maintained at the corporate trust department of the Owner Trustee, with recourse.
the Servicer shall cause an Eligible Deposit Account to be established as the Certificate Distribution Account within ten (f10) Lender shall have the right Business Days (or such longer period not to settle, accept reduced amounts, adjust disputes and claims directly with, exceed thirty (30) calendar days as to which each Rating Agency may consent) and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any written notice of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not location and account number of such account to the Owner Trustee. The Certificate Distribution Account will be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise established and maintained pursuant to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission account agreement which results in specifies New York law as the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsgoverning law.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Sale and Servicing Agreement (USAA Auto Owner Trust 2006-1)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Borrower shall within 30 days following the date hereof establish with DBTCA, as securities intermediary, two accounts for purposes of this Deed, each in the name of the Borrower for the benefit of the Collateral Agent, one such account (including any subaccounts therein) being the “Collateral Account” and the other such account (including any subaccounts therein) being the “Pledged Reserves Account”. Subject to the provisions of this Deed, each Account shall be under the sole control of the Collateral Agent. DBTCA, as securities intermediary, shall comply with the instructions of the Collateral Agent with respect to each Account and shall comply with any entitlement order received from the Collateral Agent, without further consent of the Borrower or any other person, with respect to all securities, financial assets or other investment property credited to each Account, and DBTCA, as securities intermediary, will not comply with entitlement orders or instructions concerning either Account or securities, financial assets or other investment property credited thereto originated by the Borrower. Prior to the termination of this Deed and subject to the following provisions of this Section 8, amounts in the Accounts shall be applied only to pay and discharge Secured Obligations. At the request of the Collateral Agent, the Borrower agrees promptly to cause each or both Accounts to be opened with and maintained by another bank or banks (the “Depositary”) acceptable to the Collateral Agent and the Borrower under an account agreement in form and substance satisfactory to the Collateral Agent and the Borrower and subject to an agreement providing the Collateral Agent with control over each applicable Account and all Collateral credited from time to time thereto, in form and substance similar hereto. Each Account shall at all times be maintained within the United States. The Borrower and DBTCA, as securities intermediary, agree that each Account constitutes a “securities account” for purposes of Articles 8 and 9 of the Uniform Commercial Code and that, so long as an Account is maintained with DBTCA, as securities intermediary, (i) DBTCA, as securities intermediary, will treat all of the Collateral credited from time to time to such Account as financial assets within the meaning of Article 8 of the Uniform Commercial Code to the fullest extent it may direct any or do so under the Uniform Commercial Code, and (ii) DBTCA, as securities intermediary, shall act as a securities intermediary with respect to such Account. For purposes of Articles 8 and 9 of the Uniform Commercial Code, all matters relating to the Collateral and each Account Debtors to make payment directly to Lender or to a specified agent shall be governed by the laws of Lenderthe State of New York.
(b) Lender may demandAll cash, collectdocuments, receive instruments, securities general intangibles, financial assets and give receipts other investment property and Collateral from time to time on deposit in or credited to each Account, and all rights pertaining to investments of funds in each Account, shall immediately and without any need for any further action on the part of the Borrower or the Collateral Agent become subject to the security interest, lien and all money and other property due assignment set forth in this Deed. Any earnings on investments of funds in either Account shall be deposited into or to become due retained in connection with the AccountsCollateral Account, in Lender’s or Debtor’s nameas the case may be.
(c) Lender may file any claim and take Without limitation of any other action rights which the Collateral Agent may have in and to any court funds in either Account, including interest accrued and accredited thereto, if the Loss Threshold Incurrence Date has occurred, (i) the Collateral Agent shall have the exclusive right to deliver instructions and entitlement orders to the issuer of law or equity any securities intermediary for any securities, financial assets or other investment property in each Account without further consent from the Borrower, (ii) the proceeds of any investments in each Account which Lender determines mature or which shall from time to time be appropriate sold may be reinvested in Qualified Investments for the purpose account of collecting such Account, (iii) any net income or all gain on the investment of funds from time to time held in an Account shall be credited to such Account, and any net loss on any such investment shall be charged against such Account and (iv) the Collateral Agent shall be authorized to invest and reinvest the funds from time to time deposited in either Account in Qualified Investments in the sole discretion of the Accounts; providedCollateral Agent. The Collateral Agent shall not be a trustee for the Borrower, nor shall have any obligations or responsibilities, or shall be liable for anything done or not done, in connection with this Deed or any funds in the Collateral Account, except as expressly provided herein and except that the Collateral Agent shall have the obligations of a secured party under the Uniform Commercial Code in effect from time to time in the State of New York. In no event, however, that Lender shall not the Collateral Agent have any obligations or responsibilities or be obligated liable in any manner way for any investment decision made pursuant to make this Section or for any demand or to make any inquiry as to decrease in the nature or sufficiency value of any payment received by itfunds pledged or invested pursuant to this Deed. At any time after an Event of Default has occurred and is continuing, or to present or file the Collateral Agent may sell any claim or take documents, instruments and securities held in the Collateral Account and deliver instructions and entitlement orders with respect thereto and may immediately apply the proceeds thereof and any action to collect or enforce other cash held in the payment of any or all Collateral Account against and on account of the AccountsSecured Obligations in the manner provided in Section 7.
(d) DebtorIn addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, at Lender’s requestany time after an Event of Default has occurred and is continuing, shallthe Collateral Agent is hereby authorized at any time and from time to time, and Lenderwithout notice to the Borrower or to any other person or entity, at Lender’s option may, give any such notice in form acceptable to Lenderbeing hereby expressly waived by the Borrower, to appropriate and apply all moneys in each Account against and on account of the Account Debtors: (i) of Debtor’s grant of a security interest Secured Obligations in the Accounts manner provided in Section 7, irrespective of whether or not the Collateral Agent shall have made any demand hereunder. The Collateral Agent is hereby authorized to Lender; debit each Account and (ii) of such additional information to withdraw funds therefrom to pay interest and instructions concerning Lender’s rights principal when due under this Security the Credit Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTand the Notes without further instruction from the Borrower.
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, From and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following after the occurrence and during the continuance of an Event of Default, Debtor: the Collateral Agent shall transfer or direct the transfer of available funds from each Account to the Administrative Agent on each date any principal amount of the Loans or interest thereon are required to be paid pursuant to the Credit Agreement in an amount equal to the lesser of (i) shall immediately pay or deliver the available credit balance of such payment to Lender in the original form in which received by Debtor; Account on such date and (ii) shall endorse the aggregate amount of such principal and/or interest required to Lender, with recourse, all checks, drafts, money orders, notes, be paid on such date in payment for the account of the Borrower of such principal and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderinterest.
Appears in 1 contract
Accounts. With (i) The Borrower and each other Loan Party that owns a Collateral Vessel shall open and maintain for the duration of this Agreement a bank account in its name with the Administrative Agent (each an “Earnings Account” and collectively the “Earnings Accounts”) and shall procure that all hires, freights, pool income and other sums payable in respect of a Collateral Vessel are credited to, and operating expenses deducted from, such Earnings Account. The amounts credited to the Accounts, Earnings Accounts shall be freely available to the Borrower and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors each other Loan Party that owns a Collateral Vessel unless a Default has occurred and is continuing and notice has been given to make payment directly to Lender or to a specified agent of Lenderthe Borrower by the Administrative Agent that such amounts shall not be freely available.
(bii) Lender may demandThe Borrower and each Designated Subsidiary Guarantor shall open and maintain for the duration of this Agreement a bank account in its name with the Administrative Agent (each a “Designated Vessel Earnings Account” and collectively the “Designated Vessel Earnings Accounts”) and shall procure that, collectafter release thereof from accounts pledged to any owner of the Designated Vessels or any such owner’s lender, receive and give receipts for any and all money hires, freights, pool income and other property due or sums payable to become due such Designated Subsidiary Guarantor in connection with respect of a Designated Vessel are credited to, and bareboat charter hire and operating expenses deducted from, such Designated Vessel Earnings Account. The amounts credited to the Accounts, in Lender’s or Debtor’s nameDesignated Vessel Earnings Accounts shall be freely available to the Borrower and each Designated Subsidiary Guarantor unless a Default has occurred and is continuing and notice has been given to the Borrower by the Administrative Agent that such amounts shall not be freely available.
(ciii) Lender may file any claim and take any The Borrower each other action Loan Party together shall accumulate the amounts described in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: sub-clauses (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights this Section 5.0 1(p) in one or more Earning Accounts or Designated Vessel Earning Accounts or other account of the Borrower pledged to the Administrative Agent under this Security Agreement a Loan Document; provided, notwithstanding the foregoing, the Borrower may transfer to an account of the Manager amounts required to pay operating expenses from time to time, as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender long as the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts notice described in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to relevant Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided Pledge Agreement or Designated Account Pledge Agreement has not been delivered by the UCC and except for any of Security Trustee to the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsBorrower as set forth therein.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Senior Secured Credit Facility (Excel Maritime Carriers LTD)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) On or prior to the Effective Date, the Servicer shall establish each Account in the name of the Borrower and each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent upon its request for application by the Collateral Agent pursuant to Section 8.3. If at any time a Responsible Officer of the Collateral Agent obtains actual knowledge that any Account ceases to be an Eligible Account (with notice to the Servicer, the Administrative Agent, each Lender (via the Collateral Agent’s Website), and Morningstar (via email at ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇)), then the Servicer shall transfer such account to another institution such that such account shall meet the requirements of an Eligible Account. Except as set forth below and the proviso hereof, amounts on deposit in the Unfunded Exposure Account may direct be withdrawn by the Borrower or the Servicer (i) to fund any draw requests of the relevant Obligors under any Variable Funding Asset included in the Collateral as of such date, or all Account Debtors (ii) to make payment directly a deposit into the Collection Account as Principal Collections if, after giving effect to such withdrawal, the aggregate amount on deposit in the Unfunded Exposure Account plus, solely during the Revolving Period, the undrawn portion of the Commitments available to be drawn hereunder, is equal to or greater than the Aggregate Unfunded Amount; provided that, notwithstanding the foregoing, upon an event described in Section 2.2(c) (as notified by the Administrative Agent to the Collateral Custodian), amounts on deposit in the Unfunded Exposure Account may only be withdrawn with the consent of the Administrative Agent (in its sole discretion). Following the Facility Termination Date, any draw request made by an Obligor under a Variable Funding Asset included in the Collateral as of such date, along with wiring instructions for the applicable Obligor, shall be forwarded by the Servicer to the Collateral Custodian (with a copy to the Administrative Agent and each Lender or (via the Collateral Agent’s Website)) along with an instruction to the Collateral Custodian to withdraw the applicable amount from the Unfunded Exposure Account and a certification that the conditions to fund such draw are satisfied, and the Collateral Custodian shall, subject to the proviso in the immediately above paragraph, fund such draw request in accordance with such instructions from the Servicer. Following the end of the Revolving Period, if the Borrower shall receive any Principal Collections from an Obligor with respect to a specified agent Variable Funding Asset included in the Collateral as of Lendersuch date and, as of the date of such receipt (and after taking into account such repayment), the aggregate amount on deposit in the Unfunded Exposure Account is less than the Aggregate Unfunded Amount (the amount of such shortfall, in each case, the “Unfunded Exposure Shortfall”), the Servicer shall direct the Collateral Custodian to and the Collateral Custodian shall deposit into the Unfunded Exposure Account an amount of such Principal Collections equal to the lesser of (a) the aggregate amount of such Principal Collections and (b) the Unfunded Exposure Shortfall.
(b) Lender may demandAll amounts held in any Account shall, collectto the extent permitted by Applicable Laws, receive be invested by the Collateral Agent, as directed by the Servicer in writing (or, if the Servicer fails to provide such direction, such amounts shall be invested in investments described in clause (d) of the definition of Permitted Investments), in Permitted Investments that mature (i) with respect to the Collection Account, not later than one Business Day prior to the Distribution Date for the Collection Period to which such amounts relate and (ii) with respect to the Unfunded Exposure Account, on the immediately following Business Day. Any such written direction shall certify that any such investment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Collateral Agent on behalf of the Secured Parties, and, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give receipts such direction, the Administrative Agent. The Collateral Agent shall, upon written request, provide the Administrative Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Administrative Agent, as applicable, to timely provide investment instruction or disposition instruction, as applicable, to the Collateral Custodian. The Collateral Agent or the Collateral Custodian and all money and other property due or their respective Affiliates shall be permitted to become due receive additional compensation that could be deemed to be in connection with the Accounts, in LenderCollateral Agent’s or Debtorthe Collateral Custodian’s nameeconomic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using Affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Lender may file Neither the Borrower nor the Servicer shall have any claim and take any other action rights of direction or withdrawal, with respect to amounts held in any court of law or equity which Lender determines Account, except to be appropriate for the purpose of collecting any or all extent explicitly set forth herein. Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the Accounts; providedUCC) over each Account and each such investment and the income thereon, howeverand any certificate or other instrument evidencing any such investment, that Lender if any, shall not be obligated in any manner to make any demand or to make any inquiry as delivered to the nature Collateral Agent or sufficiency its agent, together with each document of any payment received by ittransfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to present or file any claim or take any action the Collection Account and distributed pursuant to collect or enforce the payment of any or all of the AccountsSection 8.3(a).
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option The Equityholder may, give notice from time to time in form acceptable to Lender, its sole discretion (x) deposit amounts into the Principal Collection Account and/or (y) transfer Eligible Collateral Obligations as equity contributions to the Account Debtors: (i) of Debtor’s grant of a security interest Borrower. All such amounts will be included in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights each applicable compliance calculation under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallAgreement, promptly following Lender’s requestincluding, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instrumentswithout limitation, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any calculation of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, Borrowing Base and the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsMinimum Equity Test.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Servicer shall, prior to the Closing Date, cause to be established and maintained an Eligible Deposit Account in the name "[ ] as Indenture Trustee, as secured party from USAA Auto Owner Trust 200_-[ ]", initially at the corporate trust department of the Indenture Trustee, which shall be designated as the "Collection Account". The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided, that the Servicer may make deposits to and direct any or all Account Debtors the Indenture Trustee in writing to make withdrawals from the Collection Account in accordance with the terms of the Basic Documents. The Collection Account will be established and maintained pursuant to an account agreement which specifies New York law as the governing law. In addition, the Collection Account shall be established and maintained at an Institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account shall be held by the Indenture Trustee as secured party for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lenderthe Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account shall be made only upon the terms and conditions of the Basic Documents. If the Servicer is required to remit collections pursuant to the first sentence of Section 4.2, all amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Collection Account in specified Permitted Investments that mature not later than the Business Day immediately prior to the Payment Date for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. All interest and other income (net of losses and investment expenses) on funds on deposit in the Collection Account shall be withdrawn from the Collection Account at the written direction of the Servicer and shall be paid to the Servicer. The Indenture Trustee shall not be liable for investment losses in Permitted Investments made in accordance with directions from the Servicer. In the event that the Collection Account is no longer to be maintained at the corporate trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit Account to be established as the Collection Account within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent).
(b) Lender may demandThe Servicer shall, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as prior to the nature Closing Date, establish and maintain an administrative subaccount within the Collection Account at the bank or sufficiency of any payment received by ittrust company then maintaining the Collection Account, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which subaccount shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have designated as the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender."Principal
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct The Trustee shall maintain one or more accounts (“Trust Accounts”) on behalf of the Trust with one or more financial depository institutions (each a “ Financial Institution”). Candidates for the positions of Financial Institution shall fully disclose to the Trustee any interest in or all Account relationship with the Purchaser Entities, the Debtors to make payment directly to Lender or to any other Released Parties. Any such interest or relationship shall not be an automatic disqualification for the position, but the Trustee shall take any such interest or relationship into account in selecting a specified agent of LenderFinancial Institution.
(b) Lender The Trustee may, from time to time, create such accounts and reasonable reserves within the Trust Accounts as authorized in this Section 3.1 and as he or she may demanddeem necessary, collectprudent or useful in order to provide for distributions to Beneficiaries and the payment of Trust Operating Expenses and may, receive with respect to any such account or reserve, restrict the use of money therein for a specified purpose (the “Trust Subaccounts”). Any such Trust Subaccounts established by the Trustee shall be held as Trust Assets and give receipts for any and all money and other property due are not intended to be subject to separate entity tax treatment as a “disputed claims reserve” within the meaning of the IRC or to become due in connection with the AccountsTreasury Regulations, in Lender’s or Debtor’s namea “disputed ownership fund” within the meaning of the Treasury Regulations, or otherwise.
(c) Lender The Trustee may file replace any claim retained Financial Institution with a successor Financial Institution at any time, and take any other action in any court of law or equity which Lender determines to such successor shall be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as subject to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountsconsiderations set forth in Section 3.1(a).
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable The Trustee shall establish two separate subaccounts of the Trust to Lender, to receive funds designated under the Account Debtors: Plan for (i) the professional fees of Debtor’s grant of a security interest the Beneficiaries (the “ State Opioid Costs and Fees Allocation”) which shall be administered exclusively in accordance with the Accounts to Lender; terms set forth on Exhibit 2 hereof, and (ii) the professional fees of such additional information the Local Governments (the “Political Subdivision Costs and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriateFees Allocation”). GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor administered exclusively in accordance with the terms set forth on Exhibit 3 hereof. (The State Opioid Costs and Fees Allocation and the Political Subdivision Costs and Fees Allocation are sometimes referred to Lender, with recoursecollectively as the “Professionals Fee Funds.
(f”) Lender It is understood that the Trust shall hold the Professionals Fee Funds for administrative convenience and the Trustee shall have no responsibility to administer such Professionals Fee Funds, or to direct the right disbursement or investment of such Professionals Fee Funds; provided that (x) the Trustee will disburse the State Opioid Costs and Fees Allocation in accordance with Exhibit 2 and (y) the Trustee will disburse the Political Subdivision Costs and Fees Allocation in according with Exhibit 3. To the extent the Trustee does not receive any written direction with respect to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any investment of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsProfessionals Fee Funds, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) Trustee shall hold such payment separate and apart from Debtor’s other the funds and property in an express trust for Lender until paid or delivered to Lenderinterest bearing account at the Financial Institution.
Appears in 1 contract
Sources: Trust Agreement
Accounts. With respect Notwithstanding anything to the Accountscontrary contained herein, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following after the occurrence and during the continuance of an Event of Default, Debtor: the rights of Borrower and each and every other Person (iexcluding Agent) with respect to Accounts, upon notice to Borrower, shall immediately terminate, and no such Person except Agent shall make any further withdrawal therefrom. Thereafter, Agent may from time to time designate such signatories with respect to the Accounts as Agent may desire, and may make or authorize withdrawals from the Accounts to pay the Obligations in whole or deliver in part and/or pay operating expenses and capital expenditures with respect to the Premises, including the sale and marketing thereof, and/or any other expenses, all as Agent may deem necessary or appropriate and in such payment to Lender in order as Agent may elect. Agent may notify the original form financial institutions in which received any Account is held that Borrower no longer has a right to instruct such financial institution with respect to matters relating to the withdrawal, operation or administration of, or investment or application of funds on deposit in such Account. Without limiting the foregoing Agent shall have the right to cause the withdrawal of all funds on deposit in any Account and the deposit of such funds in an account established with Agent at any time following receipt by Debtor; (ii) shall endorse the financial institution in which such Account is held of a notice from Agent pursuant to Lender, the Account Agreement with recourse, all checks, drafts, money orders, notesrespect to such Account, and other instruments Borrower hereby authorizes and directs such financial institutions to make payment directly to Agent of the funds in or documents representing credited to such payment; (iii) accounts, or such part thereof as Agent may request. Such financial institution shall not commingle have the absolute right to rely upon such payment with any notice without inquiring as to the accuracy of Debtorthe matters referred to in such notice and the depositories shall be fully protected by Borrower in relying upon such written notice from Agent. In the event that Agent delivers such a notice, Agent shall thereafter have the exclusive right to so instruct such financial institution. Nothing in this Section 8.6 shall be construed so as to limit or impair Agent’s other funds or property; and (iv) absolute right to have a receiver appointed following an Event of Default. All references to “Accounts” in this Section 8.6 shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderexclude the Operating Account.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct Upon the expiration of the Transition Period, maintain all of Borrower’s, any of its Subsidiaries’, and any Guarantor’s operating accounts, depository accounts and excess cash with Bank or all Bank’s Affiliates; provided that, Borrower shall be permitted to maintain the Collections Account Debtors during the Collections Account Transition Period so long as (i) subject to make payment directly to Lender or Section 5.15(d), the Collections Accounts shall be subject to a specified agent Control Agreement in favor of LenderBank, (ii) the maximum account balance in the Collections Account shall not exceed $2,000,000.00 at any time, and (iii) Borrower shall transfer any and all funds deposited into the Collections Account into an account in the name of B▇▇▇▇▇▇▇ maintained at Bank not later than within 10 Business Days (or such longer period as Bank may agree in writing) following the end of any month ending after the Effective Date.
(b) Lender may demandIn addition to the foregoing, collectBorrower, receive any Subsidiary of Borrower and give receipts for any Guarantor, shall obtain any business credit card and all money and letter of credit (other property due or to become due in connection with than the Accounts, in Lender’s or Debtor’s namePermitted JPM Letter of Credit during the JPM Letter of Credit Transition Period) exclusively from Bank.
(c) Lender In addition to and without limiting the restrictions in (a), Borrower shall provide Bank five (5) days prior written notice (or such shorter period as Bank may file agree in writing in its sole discretion) before establishing any claim Collateral Account at or with any bank or financial institution other than Bank or Bank’s Affiliates. Subject to Section 5.15(d) with respect to the Collections Account, for each Collateral Account that Borrower at any time maintains, Borrower shall cause the applicable bank or financial institution (other than Bank) at or with which any Collateral Account is maintained to execute and take any deliver a Control Agreement or other action appropriate instrument with respect to such Collateral Account to perfect Bank’s Lien in any court such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of law or equity which Lender determines to be appropriate for the purpose of collecting any or all Bank. The provisions of the Accounts; provided, however, that Lender previous sentence shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: apply (i) of Debtor’s grant of a security interest in during the Accounts Transition Period (other than with respect to Lender; and the Collections Account, subject to Section 5.15(d)) or (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shalldeposit accounts exclusively used for payroll, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guarantiespayroll taxes, and other documents employee wage and property evidencing benefit payments to or securing for the Accounts in the same form benefit of Borrower’s employees and identified to Bank by Borrower as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recoursesuch.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Evolv Technologies Holdings, Inc.)
Accounts. With respect Borrower hereby grants to the Accounts, Agent and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of Lenders a security interest in all rights of Borrower in and to the Accounts (including all subaccounts thereof) and all sums on deposit therein as additional security for the Obligations. Borrower shall cause all banks or financial institutions other than Agent which are holding any Account to Lender; execute and deliver to Agent an Account Agreement with respect to such Account. Subject to the rights of Borrower expressly set forth herein to make withdrawals from, and otherwise give instructions with respect to, the Accounts, Borrower hereby acknowledges and agrees that Agent shall have sole dominion and control of the Accounts. Borrower shall not close any Account without obtaining the prior consent of Agent. Borrower shall not open any Account other than the Accounts open as of the Closing Date (whether in substitution of another Account or otherwise) (a) without delivering to Agent at least ten (10) Business Days prior notice of Borrower’s intention to open a new Account and (b) unless, (i) the bank or other financial institution at which such Account is to be opened is reasonably acceptable to Agent and (ii) prior to the opening of such additional information Account, Borrower shall have delivered to Agent an Account Agreement with respect to such Account. Borrower shall maintain the Accounts and instructions concerning Lender’s rights under this Security shall pay all fees and charges with respect thereto when due, and shall keep in full force and effect the Account Agreement with respect thereto. So long as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallno Event of Default has occurred and is continuing, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals exception of interest allocated to the “Tax and Insurance Premium Reserve Sub-Account” (as defined such term is defined in the Cash Management Agreement) all instrumentsinterest earned on amounts deposited in any Accounts (other than the Operating Account) shall be allocated to the Operating Account on a monthly basis. No funds in any Account may be commingled with any other funds of Borrower, chattel paperManager, security agreements, guaranties, and any Affiliate of Borrower or Manager or with any other documents and property evidencing Person or securing with any funds contained in any other Account. All sums held in the Accounts in shall constitute additional security for the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for Obligations. At any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts time following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender Agent may apply any funds on deposit in the original form Accounts as set forth in which received Section 9.6 hereof subject to the rights of Lessees in and to any Security Deposits and otherwise have the rights and remedies with respect to the Accounts set forth in the Loan Documents, at law or equity. Neither Agent nor Lenders shall be liable for any loss of interest on or any penalty or charge assessed against the funds in, payable on, or credited to any Account as a result of the exercise by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with Agent of any of Debtor’s other funds its rights, remedies or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid obligations under any Loan Document, at law or delivered to Lenderequity.
Appears in 1 contract
Accounts. With respect to the AccountsNo Corporate Credit Party has made, and without limiting Lender’s rights above:
(a) Lender may direct nor will any or all Credit Party make, any agreement with any Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts Debtor for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court extension of law or equity which Lender determines to be appropriate time for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction ofAccount, any goods, the sale compromise or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account settlement for less than the full amount hereofthereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by a Corporate Credit Party and such other compromises or settlements in the ordinary course of its business consistent with historical practice and as previously disclosed to Lender in writing. With respect to the Accounts pledged as collateral pursuant to any Credit Document (a) the amounts shown on all invoices, statements and reports which may be delivered to the Lender with respect thereto are actually and absolutely owing to a Credit Party as indicated thereon and are not in any way contingent; (b) no payments have been or shall be made thereon except payments immediately delivered to Lender as required hereunder; and (c) to each Corporate Credit Party’s knowledge all Account Debtors have the capacity to contract. As of the date of each Borrowing Base Certificate delivered to Lender, each Account listed thereon as an Eligible Account shall be an Eligible Account and all Inventory listed thereon as Eligible Inventory shall be Eligible Inventory. Each Borrower shall notify Lender promptly and in any event within two (2) Business Days after obtaining knowledge thereof (i) of any event or circumstance that to any Borrower’s knowledge would cause Lender to consider any then existing Account or Inventory as no longer constituting an Eligible Account or Eligible Inventory, as the case may be; (ii) of any material delay in any Borrower’s performance of any of its obligations to any Account Debtor; (iii) of any assertion by an Account Debtor of any material claims, offsets or counterclaims; (iv) of any failure or delay allowances, credits and/or monies granted by Lender in enforcing or collecting any payment under Borrower to any AccountAccount Debtor; or (v) of all material adverse information relating to the performance or observance financial condition of an Account Debtor; (vi) of any material return of goods; and (vii) of any loss, damage or all destruction of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With (i) As of the date hereof, the Pledgor has no Securities Accounts other than the Accounts. The Administrative Agent, so long as this Agreement is in effect, has a first priority security interest in the Accounts (subject to Permitted Liens), which security interest is perfected by Control. The Pledgor shall not hereafter establish and maintain any Securities Accounts with any Securities Intermediary except as contemplated by the Loan Documents. The Pledgor shall accept any cash and Investment Property in trust for the benefit of the Administrative Agent and Deliver any and all Investment Property and cash received by it into the Principal Collection Account or the Interest Collection Account, as applicable. The Administrative Agent agrees with the Pledgor that the Administrative Agent shall not issue a Notice of Exclusive Control, give any Entitlement Orders or instructions or directions to any Securities Intermediary, or withhold its consent (if any such consent is then required under any Loan Document) to the exercise of any withdrawal or investment rights by the Pledgor with respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accountsunless, in Lender’s each case, a Continuing Event of Default exists, or, with respect to any such consent, if after giving effect to any such withdrawal or Debtor’s name.
(c) Lender may file any claim and take any other action in any court investment rights, a Default or Event of law or equity which Lender determines Default would occur. The Administrative Agent agrees that it will promptly rescind a Notice of Exclusive Control following the earlier to be appropriate for the purpose of collecting any or all occur of the Accounts; provided, however, that Lender waiver of any Event of Default or the termination of this Agreement as provided in Section 8.4. The Pledgor shall not be obligated grant Control over any Investment Property to any Person other than the Administrative Agent. For the avoidance of doubt, nothing in this Section 3.2(c)(i) shall release or relieve any manner to make any demand or to make any inquiry as Securities Intermediary of its duties and obligations to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor Pledgor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results Person under applicable law as set forth in the loss or impairment Account Control Agreement. This Agreement shall, upon the execution and delivery of the Debtor’s AccountAccount Control Agreement by the parties thereto, including any act or omission which results in give the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any Administrative Agent “control” of the Accounts following within the occurrence and during meaning of Article 9 of the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender UCC as in effect in the original form in which received by Debtor; (ii) shall endorse State of New York from time to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lendertime.
Appears in 1 contract
Accounts. With respect to the AccountsSchedule 8.5 hereof sets forth, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all as of the Accounts; provideddate hereof, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) for SPV, the name of Debtor’s grant each Person by which there is maintained, or with which there is maintained, any Deposit Account or Securities Account in which any of a security interest in Subscriber Funds, Investments or the Accounts to Lender; proceeds thereof, or any SPV Funds, SPV Investments or the proceeds thereof are maintained, together with the title and account number of each such Deposit Account or Securities Account and (ii) for Servicer, the name of such additional information each Person by which there is maintained, or with which there is maintained, any Deposit Account in which any funds related to or proceeds of accounts receivable or other assets arising from or related to the Business or Electronic Commerce Services Division and instructions concerning Lender’s rights in which Servicer has granted Bank a security interest under this the Servicer Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallare received, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals title and account number of all instrumentseach such Deposit Account or Securities Account. Except for the Amended and Restated Loan and Security Agreement by and among KeyBank, chattel paper, security agreements, guarantiesParent, and other documents and property evidencing or securing the Accounts in the same form CheckFree Investment Corporation dated as received by Debtorof December 30, each of 1999, which shall be properly endorsed terminated prior to the commencement of the Services set forth in this Agreement, neither SPV nor Servicer has entered into any agreement with any other Person granting, conveying or transferring to such Person any rights in or control of any Deposit Account or Securities Account set forth on Schedule 8.5 or cash or financial assets maintained therein. SPV shall not have any other accounts other than the DDA, the Deposit Accounts and the Securities Accounts described on Schedule 8.5 as of the Agreement Date. Servicer shall not have any other accounts in which any funds related to or proceeds of Subscriber Funds or any accounts receivable or other assets arising from or related to the Business or the Electronic Commerce Services Division and in which Servicer has granted a security interest to Bank pursuant to the Servicer Security Agreement are deposited, other than the Deposit Accounts and Securities Accounts described on Schedule 8.5 as of the Agreement Date; provided, however that Parent or Servicer may maintain a deposit, investment or overnight investment account (collectively, the "Sweep Account") not otherwise listed in Schedule 8.5 into which all monies derived from the accounts receivable of the Electronic Commerce Services Division may be swept, prior to notice by Debtor to Lender, with recourse.
(f) Lender shall have Bank under the right to settle, accept reduced amounts, adjust disputes and claims directly withControl Agreements, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender which Bank shall not be directly or indirectly liable or responsible in any way or under any circumstances granted a security interest pursuant to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction ofthe Servicer Security Agreement. Moreover, any goodssecurity interest that Bank may have in the funds in the Deposit Accounts listed in Schedule 8.5 shall be terminated once such funds are transferred to the Sweep Account as permitted hereunder. All cash, checks, drafts or similar items of payment relating to or constituting payments made in respect of accounts receivable arising from or related to the sale Business or the Electronic Commerce Services Division or other disposition of assets in which gives rise Servicer has granted a security interest to an Account; (ii) any actBank pursuant to the Servicer Security Agreement, omission, error or delay of any kind by Lender will be deposited only in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment one of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsServicer's accounts described on Schedule 8.5.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or before the date of the first Loan, the Borrower shall establish with the Custodian as Securities Intermediary (i) a securities account (the “Collateral Account”) to which all Portfolio Assets will be credited, (ii) a securities account, which shall be a subaccount of the Collection Account, into which all interest proceeds from the Portfolio Assets and other Interest Collections will be deposited (the “Interest Collection Account”), (iii) a securities account, which shall be a subaccount of the Collection Account, into which all principal proceeds received in connection with the Portfolio Assets (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof up to the outstanding principal amount thereof) and other principal proceeds will be deposited (the “Principal Collection Account” and, together with the Interest Collection Account, the “Collection Account”), (iv) a securities account (the “Trust Account”) into which all cash received by the Borrower from the equity contributions made by the Equityholder, all Loan proceeds and any amounts transferred from the Principal Collection Account Debtors in accordance with the Principal Priority of Payments will be deposited and (v) a securities account (the “OC Ratio Posting Account”) into which funds related to make payment directly OC Ratio Posting Payments shall be deposited pursuant to Lender or to a specified agent of LenderSection 6. The Accounts shall be maintained in accordance with the Account Control Agreement.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due The only permitted withdrawal from or application of assets credited to become due the Collateral Account shall be to deliver such assets in connection with a sale, termination, repayment or other disposition of such asset against payment or exchange. Any cash payment received in connection with any such disposition shall be deposited into the AccountsCollection Account or paid to the Administrative Agent on behalf of the Lenders as provided herein, and any non-cash asset received in Lender’s or Debtor’s nameexchange shall be credited to the Collateral Account promptly.
(c) Lender may file The Borrower (or the Collateral Manager on behalf of the Borrower) shall instruct each obligor under the Portfolio Assets (or, with respect to any claim Agented Asset, the paying agent) to deliver all proceeds in respect of the Borrower Collateral to the Collection Account. The Borrower shall (or shall cause the Collateral Manager to), on a daily basis (on each Business Day), identify collections received in the Collection Account on the second prior Business Day in connection with the Portfolio Assets as either Principal Collections or Interest Collections and take any other action notify the Custodian of such determination. The Borrower (or the Collateral Manager on behalf of the Borrower) shall cause all Principal Collections received on behalf of the Portfolio Assets in the Collection Account to be promptly (but in any court event no later than one Business Day following receipt thereof) transferred by the Custodian to the Principal Collection Account. The Borrower (or the Collateral Manager on behalf of law or equity which Lender determines the Borrower) shall cause all Interest Collections received on behalf of the Portfolio Assets in the Collection Account to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated promptly (but in any manner event no later than one Business Day following receipt thereof) transferred by the Custodian to the Interest Collection Account. The only permitted withdrawal from or application of funds on deposit in the Collection Account, Principal Collection Account or Interest Collection Account shall be to make any demand payments expressly provided for in this Agreement or, to transfer funds to the Trust Account in connection with a Reinvestment pursuant to Section 5(b) or to make a Permitted Distribution on any inquiry as Business Day pursuant to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce requirements set forth in the payment of any or all of the Accountsdefinition thereof.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice The only permitted withdrawals from or application of funds on deposit in form acceptable the Trust Account shall be to Lender, to the Account Debtors: either (i) of Debtor’s grant of a security interest make prepayments on outstanding Loans in the Accounts to Lender; and accordance with Section 2(h) or other payments expressly provided for in this Agreement or (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTpurchase Assets.
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals The only permitted withdrawals from or application of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts funds on deposit in the same form as received by Debtor, each of which OC Ratio Posting Account shall be properly endorsed by Debtor to Lender, in accordance with recourseSection 6 hereof.
(f) Lender shall have With the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf prior written consent of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines the Administrative Agent (not to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s unreasonably withheld or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsdelayed), the sale or other disposition of which gives rise Collateral Manager may direct the Custodian and the Securities Intermediary to an Account; (ii) withdraw from the Collection Accounts and pay to the Person entitled thereto any actamounts credited thereto constituting Excluded Amounts if the Collateral Manager has, omissionprior to such withdrawal and consent, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to the Administrative Agent, the Securities Intermediary, the Borrower and each Lender a report setting forth the calculation of such Excluded Amounts in form and substance reasonably satisfactory to the Administrative Agent and each Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or before the date of the first Loan, the Borrower shall establish at the Securities Intermediary (i) a securities account (the “Collateral Account”) to which all Portfolio Assets will be credited, (ii) a securities account into which all interest proceeds from the Portfolio Assets and other Interest Collections (upon their identification as Interest Collections by the Collateral Manager) will be deposited (the “Interest Collection Account”), (iii) a securities account into which all principal proceeds received in connection with the Portfolio Assets (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof up to the outstanding principal amount thereof) and other principal proceeds, upon identification by the Collateral Manager will be deposited (the “Principal Collection Account” and, collectively with the Interest Collection Account, the “Collection Account”), (iv) a securities account (the “Trust Account”) into which all cash received by the Borrower from contributions by the Equity Investors, all Loan proceeds and any amounts transferred from the Principal Collection Account Debtors (with the consent of the Administrative Agent) will be deposited, (v) a securities account (the “Prepayment Reserve Account”) into which funds received by the Borrower in connection with any sale or disposition of a Portfolio Asset shall be deposited to make payment directly the extent the Borrower elects to Lender or deposit such funds in accordance with Section 2(i)(ii)(A), (vi) a securities account (the “Reserve Account”) into which funds related to Delayed Drawdown Collateral Obligations and Revolving Collateral Obligations shall be deposited pursuant to Section 2(m) and (vii) a specified agent of Lendersecurities account (the “OC Ratio Posting Account”) into which funds related to Posting Contributions shall be deposited pursuant to Section 6. The Accounts shall be maintained in accordance with the Account Control Agreement.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due The only permitted withdrawal from or application of assets credited to become due the Collateral Account shall be to deliver such assets in connection with a sale, termination, repayment or other disposition of such asset against payment or exchange. Any cash payment received in connection with any such disposition shall be deposited into the AccountsCollection Account or paid to the Administrative Agent on behalf of the Lenders as provided herein, and any non-cash asset received in Lender’s or Debtor’s nameexchange shall be credited to the Collateral Account promptly.
(c) Lender may file The Borrower (or the Collateral Manager on behalf of the Borrower) shall instruct each obligor under the Portfolio Assets (or, with respect to any claim Agented Asset, the paying agent) to deliver all proceeds in respect of the Collateral to the Collection Account. The Collateral Manager shall, on a daily basis (on each Business Day), identify collections received in the Collection Account on the second Business Day prior to such date of identification in connection with the Portfolio Assets as either Principal Collections or Interest Collections and take any other action notify the Collateral Administrator, the Custodian and the Securities Intermediary of such determination. To the extent not deposited directly into the Principal Collection Account, the Custodian shall cause all Principal Collections received on behalf of the Portfolio Assets in the Collection Account to be promptly (but in any court event no later than one Business Day following identification thereof by the Collateral Manager) transferred by the Securities Intermediary to the Principal Collection Account. To the extent not deposited directly into the Interest Collection Account, the Custodian shall cause all Interest Collections received on behalf of law or equity which Lender determines the Portfolio Assets in the Collection Account to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated promptly (but in any manner event no later than one Business Day following identification thereof by the Collateral Manager) transferred by the Securities Intermediary to the Interest Collection Account. The only permitted withdrawal from or application of funds on deposit in the Principal Collection Account or Interest Collection Account shall be to make any demand payments expressly provided for in this Agreement or to make any inquiry as transfer funds to the nature or sufficiency of any payment received by it, or Trust Account in connection with a Reinvestment pursuant to present or file any claim or take any action to collect or enforce the payment of any or all of the AccountsSection 5(d).
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice The only permitted withdrawals from or application of funds on deposit in form acceptable the Trust Account shall be to Lender, to the Account Debtors: either (i) of Debtor’s grant of a security interest make payments on outstanding Loans in the Accounts to Lender; and accordance with Section 2(h) or (i) or other payments expressly provided for in this Agreement, or (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTpurchase Assets.
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals The only permitted withdrawals from or application of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts funds on deposit in the same form as received by Debtor, each of which Prepayment Reserve Account shall be properly endorsed by Debtor the Borrower to Lender, either (i) make mandatory prepayments pursuant to Section 2(i)(ii)(A) at or before the end of the applicable Interest Accrual Period or (ii) make payments on outstanding Loans in accordance with recourseSection 2(h).
(f) Lender The only permitted withdrawals from or application of funds on deposit in the Reserve Account shall have the right be either (i) to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor make additional payments with respect to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines a Delayed Drawdown Collateral Obligation or a Revolving Collateral Obligation pursuant to Section 2(m) or (ii) to be appropriatedeposited in the Principal Collection Account pursuant to Section 2(m) as a result of a sale of a Delayed Drawdown Collateral Obligation or a Revolving Collateral Obligation or an irrevocable reduction of the Borrower’s additional payment obligations under a Delayed Drawdown Collateral Obligation or a Revolving Collateral Obligation pursuant to the related Underlying Instruments.
(g) Except as otherwise provided by The only permitted withdrawals from or application of funds on deposit in the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender OC Ratio Posting Account shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: either (i) any shortage to be deposited in the Trust Account upon an Event of Default or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such make a payment to Lender the Equity Investors (or their applicable designees) in the original form in which received by Debtor; (iiaccordance with Section 6(b) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderhereof.
Appears in 1 contract
Accounts. With (a) The General Interest Trustee will establish and maintain with respect to the General Trust Assets a General Collection Account and such other bank accounts as may be directed in writing by the Initial Beneficiary (the "General Trust Accounts"). Each Portfolio Trustee will ---------------------- establish and maintain with respect to each Portfolio Interest such bank accounts as may be set forth in the applicable Portfolio Supplement ("Portfolio Accounts" and, together with the General Trust Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.the ------------------ "Trustee Accounts"). ----------------
(b) Lender may demandExcept to the extent otherwise provided in the applicable Portfolio Supplement, collectall Trust expenses shall be paid by the Servicer (other than Liquidation Expenses and losses with respect to the Trust Assets). In the event of any failure of the Servicer to pay any expense of the Trust, receive such expense shall be paid as provided in Section 3.14 of the Servicing Agreement, and give receipts for if the funds available therein are insufficient to pay such liability or expense, then (i) to the extent that any such expense or liability shall be incurred or suffered with respect to any particular Portfolio Interest or General Interest Trustee or any Portfolio Trustee, such expense or liability shall be paid from the assets of that Portfolio Interest or General Interest and (ii) to the extent that any such expense or liability shall be incurred or suffered with respect to the Trust Assets generally, all money Holders of the Trust shall bear the burden of such Trust expense or liability on a pro rata basis in the ratio of the aggregate --- ---- value of Trust Assets held in each of the respective Portfolio Assets and other property due the General Trust Assets, as each is recorded on the books of the Trust to the total value of all Trust Assets. Any pro rata allocation of an expense --- ---- or liability among one or more of the Portfolio Assets or the General Trust Assets shall be made by the General Interest Trustee in good faith and so as not to become due in connection with disproportionately affect any of the Accounts, in Lender’s Portfolio Assets or Debtor’s namethe General Trust Assets.
(c) Lender may file any claim and take any other action in any court of law All or equity which Lender determines to be appropriate for the purpose of collecting any or all a portion of the Accounts; providedfunds deposited into each General Trust Account shall be separately invested by the General Interest Trustee from time to time in Eligible Investments as directed in writing (which may be in the form of written confirmation of an oral direction) by the GI Servicer. All income or gain from investment of monies in each such General Trust Account shall be deposited upon receipt into such General Trust Account, howeverand any loss resulting from any such investment shall be charged to such account, that Lender as the case may be. Each such investment shall be made in the name of the General Interest Trustee or its nominee and shall be evidenced by an instrument or, in the case of "book-entry" investments, registration on the books of the issuer of the General Interest Trustee or a nominee as the registered owner thereof. If any certificate is issued with respect to any investment, it shall be delivered to the General Interest Trustee or its agent. If at any time the GI Servicer shall not be obligated have given the General Interest Trustee a timely investment directive with respect to any General Trust Account, the General Interest Trustee shall invest and reinvest any monies in any manner to make any demand or to make any inquiry as to such account(s) in Eligible Investments selected by the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the AccountsGeneral Interest Trustee.
(d) DebtorAll or a portion of the funds deposited into each Portfolio Account shall be separately invested by the applicable Portfolio Trustee from time to time in Eligible Investments as directed in writing by the applicable Majority PI Holder or the Servicer, at Lender’s request, shallas specified in the applicable Servicing Agreement. All income or gain from investment of monies in each such Portfolio Account shall be deposited upon receipt into such Portfolio Account, and Lenderany loss resulting from any such investment shall be charged to such account, at Lender’s option mayas the case may be. Each such investment shall be made in the name of the applicable Portfolio Trustee or its nominee and shall be evidenced by an instrument or, give notice in form acceptable the case of "book-entry" investments, registration on the books of the issuer of the applicable Portfolio Trustee or a nominee as the registered owner thereof. If any certificate is issued with respect to Lenderany investment, it shall be delivered to the Account Debtors: (iapplicable Portfolio Trustee or its agent. If at any time the applicable Majority PI Holder or the Servicer shall not have given the applicable Portfolio Trustee a timely investment directive with respect to any account, such Portfolio Trustee shall invest and reinvest all monies in such account(s) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided securities issued by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall United States Treasury with maturities not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less longer than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsseven days.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Trust Agreement (Navistar Financial Retail Receivables Corporation)
Accounts. With respect (i) At any time after the occurrence and during the continuance of an Event of Default and after giving reasonable notice to the Borrower and any other relevant Grantor, the Administrative Agent shall have the right, but not the obligation, to make test verifications of the Accounts that are included in Article 9 Collateral (the “Subject Accounts”) in any manner and through any medium that the Administrative Agent reasonably considers advisable, and without limiting Lender’s rights above:
(a) Lender each Grantor shall furnish all such assistance and information as such Agent may direct require in connection with such test verifications. The Administrative Agent shall have the absolute right to share any information it gains from such inspection or all Account Debtors to make payment directly to Lender or to a specified agent of Lenderverification with any Secured Party.
(bii) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action The Administrative Agent hereby authorizes each Grantor to collect such Grantor’s Subject Accounts and the Administrative Agent may curtail or enforce terminate said authority at any time after the payment occurrence and during the continuance of any or all an Event of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice Default. If required in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided writing by the UCC and except for Administrative Agent at any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following time after the occurrence and during the continuance of an Event of Default, Debtor: any payments of Subject Accounts, when collected by any Grantor, (ix) shall immediately pay or deliver be forthwith (and, in any event, within two Business Days) deposited by such payment to Lender Grantor in the original exact form received, duly endorsed by such Grantor to the Administrative Agent if required, in which received a Deposit Account maintained under the sole dominion and control of and on terms and conditions reasonably satisfactory to the Administrative Agent, subject to withdrawal by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notesthe Administrative Agent for the account of the Secured Parties, and (y) until so turned over, shall be held by such Grantor in trust for the Administrative Agent, on behalf of the Secured Parties, segregated from other instruments or documents representing funds of such payment; Grantor. Each such deposit of Proceeds of Subject Accounts shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.
(iii) At the Administrative Agent’s written request at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall not commingle such payment with any of Debtor’s deliver to the Administrative Agent all original and other funds or property; documents evidencing, and relating to, the agreements and transactions which gave rise to the Subject Accounts, including all original orders, invoices and shipping receipts.
(iv) Upon the occurrence and during the continuance of an Event of Default, a Grantor shall hold not, without the prior written consent of the Administrative Agent, grant any extension of the time of payment of any of the Subject Accounts, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Person liable for the payment thereof, or allow any credit or discount whatsoever thereon if the Administrative Agent shall have instructed the Grantors in writing not to grant or make any such extension, credit, discount, compromise or settlement under any circumstances during the continuance of such Event of Default.
(v) The Administrative Agent in its own name or in the name of others may at any time after the occurrence and during the continuance of an Event of Default, after giving reasonable written notice to the relevant Grantor of its intent to do so, communicate with obligors under the Subject Accounts to verify with them to the Administrative Agent’s satisfaction the existence, amount and terms of any Accounts. The Administrative Agent shall have the absolute right to share any information it gains from such inspection or verification with any Secured Party.
(vi) Upon the written request of the Administrative Agent at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall notify obligors on the Subject Accounts that the Subject Accounts have been assigned to the Administrative Agent for the benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Administrative Agent.
(vii) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Subject Accounts to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Neither the Administrative Agent nor any Secured Party shall have any obligation or liability under any Subject Account (or any agreement giving rise thereto) by reason of or arising out of this Security Agreement or the receipt by the Administrative Agent or any Secured Party of any payment separate and apart from Debtor’s other funds and property relating thereto, nor shall the Administrative Agent or any Secured Party be obligated in an express trust for Lender until paid any manner to perform any of the obligations of any Grantor under or delivered pursuant to Lenderany Subject Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or before the date of the first Loan, the Borrower shall establish at the Custodian (i) a securities account (the “Borrower Collateral Account”) to which all Portfolio Assets held by the Borrower will be credited, (ii) a securities account (the “Borrower Collection Account”) into which all proceeds received in connection with Portfolio Assets held by the Borrower (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof) will be deposited, (iii) a securities account, which shall be a subaccount of the Collection Account, into which all interest proceeds from the Portfolio Assets held by the Borrower and other related Interest Collections will be deposited (the “Borrower Interest Collection Account”), (iv) a securities account, which shall be a subaccount of the Collection Account, into which all principal proceeds received in connection with the Portfolio Assets held by the Borrower (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof up to the outstanding principal amount thereof) and other related Principal Collections will be deposited (the “Borrower Principal Collection Account”), (v) a securities account (the “Borrower Trust Account”) into which all cash received by the Borrower from the issuance of Preference Shares, all Loan proceeds and any amounts transferred from the Borrower Principal Collection Account Debtors (with the consent of the Lender) will be deposited, (vi) a securities account (the “Borrower Prepayment Reserve Account”) into which funds received by the Borrower in connection with any sale or disposition of a Portfolio Asset by the Borrower shall be deposited to make payment directly the extent the Borrower elects to Lender or deposit such funds in accordance with Section 2(h)(ii)(A), (vii) a securities account (the “Borrower Delayed Drawdown Reserve Account”) into which funds related to Delayed Drawdown Collateral Obligations held by the Borrower will be deposited pursuant to Section 2(m) and (viii) a specified agent of Lendersecurities account (the “OC Ratio Posting Account”) into which funds related to OC Ratio Posting Payments shall be deposited pursuant to Section 6. The Borrower Accounts shall be maintained in accordance with the Account Control Agreement.
(b) Lender may demandOn or before the date of becoming a CLO Subsidiary under this Agreement, collecteach CLO Subsidiary shall establish at the applicable Custodian (i) a securities account (the “CLO Subsidiary Collateral Account”) to which all Portfolio Assets held by such CLO Subsidiary will be credited, receive (ii) a securities account (the “CLO Subsidiary Collection Account”) into which all proceeds received in connection with Portfolio Assets held by such CLO Subsidiary (including any repayments or prepayments of principal and give receipts for amounts received in connection with any and sale, termination or other dispositions thereof) will be deposited, (iii) a securities account, which shall be a subaccount of such CLO Subsidiary Collection Account, into which all money interest proceeds from the Portfolio Assets held by such CLO Subsidiary and other property due or to become due related Interest Collections will be deposited (the “CLO Subsidiary Interest Collection Account”), (iv) a securities account, which shall be a subaccount of such CLO Subsidiary Collection Account, into which all principal proceeds received in connection with the AccountsPortfolio Assets held by such CLO Subsidiary (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof up to the outstanding principal amount thereof) and other related Principal Collections will be deposited (the “CLO Subsidiary Principal Collection Account”), (v) a securities account (the “CLO Subsidiary Trust Account”) into which all cash received by such CLO Subsidiary from the issuance of any preference shares, all Loan proceeds and any amounts transferred from such CLO Subsidiary Principal Collection Account (with the consent of the Lender) will be deposited, (vi) a securities account (the “CLO Subsidiary Prepayment Reserve Account”) into which funds received by such CLO Subsidiary in Lender’s connection with any sale or Debtor’s namedisposition of a Portfolio Asset by such CLO Subsidiary shall be deposited to the extent such CLO Subsidiary elects to deposit such funds in accordance with Section 2(h)(ii)(A) and (vii) a securities account (the “CLO Subsidiary Delayed Drawdown Reserve Account”) into which funds related to Delayed Drawdown Collateral Obligations held by such CLO Subsidiary will be deposited pursuant to Section 2(m). The CLO Subsidiary Accounts of each CLO Subsidiary shall be maintained in accordance with the applicable Additional Account Control Agreement.
(c) Lender may file The only permitted withdrawal from or application of assets credited to the Collateral Accounts shall be to deliver such assets in connection with a sale, termination, repayment or other disposition of such asset against payment or exchange. Any cash payment received in connection with any claim and take any other action in any court of law such disposition shall be deposited into the Collection Accounts or equity which Lender determines paid to be appropriate for the purpose of collecting any or all Administrative Agent on behalf of the Accounts; providedLenders as provided herein, however, that Lender and any non-cash asset received in exchange shall not be obligated in any manner to make any demand or to make any inquiry as credited to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountsapplicable Collateral Account promptly.
(d) DebtorThe applicable Borrower Party (or the Collateral Manager on behalf of such Borrower Party) shall instruct each obligor under the Portfolio Assets (or, at Lender’s requestwith respect to any Agented Asset, shallthe paying agent) to deliver all proceeds in respect of the Borrower Collateral to its respective Collection Account. The Borrower Parties shall (or shall cause the Collateral Manager to), on a daily basis (on each Business Day), identify collections received in each Collection Account on the second prior Business Day in connection with the Portfolio Assets as either Principal Collections or Interest Collections and Lender, at Lender’s option may, give notice notify in form acceptable to Lender, writing to the Custodian of such determination. Each Borrower Party (or the Collateral Manager on behalf of the Borrower Parties) shall cause all Principal Collections received on behalf of the Portfolio Assets in its respective Collection Account Debtors: to be promptly (ibut in any event no later than one Business Day following receipt thereof) transferred by the Custodian to its respective Principal Collection Account. Each Borrower Party (or the Collateral Manager on behalf of Debtor’s grant the Borrower Parties) shall cause all Interest Collections received on behalf of a security interest the Portfolio Assets in its respective Collection Account to be promptly (but in any event no later than one Business Day following receipt thereof) transferred by the Custodian to its respective Interest Collection Account. The only permitted withdrawal from or application of funds on deposit in the Collection Accounts, Principal Collection Accounts or Interest Collection Accounts shall be to Lender; and make payments expressly provided for in this Agreement or to transfer funds to the applicable Trust Account in connection with a Reinvestment pursuant to Section 5(d). Without limiting the foregoing, (x)(i) if the Dividend Release Ratio Condition is satisfied, on each Payment Date (other than the final Payment Date) or (ii) if the Termination Obligations have been paid in full, on the final Payment Date, the Borrower Parties shall, in each case, in accordance with the priority of payments set forth in Section 2(l), apply amounts in the Interest Collection Accounts (and to the extent such additional information amounts are insufficient, amounts in the Principal Collection Accounts) for the payment of the Subordinated Management Fee to the Collateral Manager; provided, however if such amounts are insufficient no further payment shall be made of the Subordinated Management Fee after the final Payment Date and instructions concerning Lender’s rights under this Security Agreement as Lender (y) the Borrower shall apply amounts available in Lender’s good faith business judgment determines the Borrower Interest Collection Account and the Borrower Principal Collection Account on each Payment Date pursuant to be necessary or appropriate. GENERAL SECURITY AGREEMENTSection 2(l).
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals The only permitted withdrawals from or application of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts funds on deposit in the same form as received by Debtor, each of which Trust Accounts shall be properly endorsed by Debtor to Lendereither (i) make prepayments on outstanding Loans in accordance with Section 2(h) or other payments expressly provided for in this Agreement, with recourse(ii) purchase Assets or (iii) deposit funds in the applicable Delayed Drawdown Reserve Account pursuant to Section 2(m).
(f) Lender The only permitted withdrawals from or application of funds on deposit in the Prepayment Reserve Accounts shall have be by the right Borrower to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf make mandatory prepayments pursuant to Section 2(h)(ii)(A) at or before the end of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriatethe applicable Interest Accrual Period.
(g) Except as otherwise provided by The only permitted withdrawals from or application of funds on deposit in the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender Delayed Drawdown Reserve Accounts shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: either (i) any shortage make additional payments with respect to a Delayed Drawdown Collateral Obligation pursuant to Section 2(m) or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay deposit in the applicable Principal Collection Account pursuant to Section 2(m) as a result of any kind by Lender in settling, failing to settle, collectinga sale of a Delayed Drawdown Collateral Obligation, or failing to collect any Account, including any act or omission which results in the loss or impairment an irrevocable reduction of the Debtorapplicable Borrower Party’s Account, including any act or omission which results in additional payment obligations under a Delayed Drawdown Collateral Obligation pursuant to the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsrelated Underlying Instrument.
(h) If for any reason Debtor receives any payment The only permitted withdrawals from or application of funds on deposit in connection with any of the Accounts following OC Ratio Posting Account shall be either (i) to deposit such funds in the occurrence and during the continuance of Borrower Trust Account upon an Event of Default, Debtor: (i) shall immediately pay Default or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lendermake a payment to the Preferred Investor or the Collateral Manager, as applicable, in accordance with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iiiSection 6(b) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lenderhereof.
Appears in 1 contract
Sources: Credit Agreement (JMP Group LLC)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any Prior to the Closing Date there shall have been established (i) a DCS Deposit Account, pursuant to which DCS shall deposit collections on the DCS Receivables, as more specifically described in the DCS Servicing Agreement, (ii) a Ford Credit Deposit Account, pursuant to which Ford Credit shall deposit collections on the Ford Credit Receivables, as more specifically described in the Ford Credit Servicing Agreement and (iii) a Volvo Finance Deposit Account, pursuant to which Volvo Finance shall deposit collections on the Volvo Finance Receivables, as more specifically described in the Volvo Finance Servicing Agreement. Each of the forgoing deposit accounts were established and shall initially be maintained with the Depository Institution. Pursuant to the Data Administration Agreement, on or all prior to each Payment Date, the Data Administrator shall instruct the Depository Institution to withdraw from each such deposit account for deposit into the Collection Account Debtors the Available Collections for the related Collection Period. All monies owned by the Trust deposited from time to make time in the foregoing deposit accounts shall be held by the Depository Institution for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lender.
(b) Lender may demand, collect, receive the Issuer and give receipts for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all as part of the AccountsTrust Property; provided, however, that Lender all monies owned by third parties deposited from time to time in the foregoing deposit accounts shall not be obligated in any manner so held and shall not be available for deposit into the Collection Account and shall not be available to make any demand payments in respect of the Notes or the Certificates.
(b) The Servicer shall, prior to the Closing Date, cause to be established and maintained an Eligible Deposit Account in the name "JPMorgan Chase Bank", as Indenture Trustee, as secured party from Whole Auto Loan Trust 2002-1", initially at the corporate trust department of the Indenture Trustee, which shall be designated as the "Collection Account". The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided, that the Servicer and/or Depository Institution may make any inquiry deposits to, and the Indenture Trustee may (following written instruction of the Data Administrator or the Servicer) make withdrawals from, the Collection Account in accordance with the terms of the Basic Documents. The Collection Account will be established and maintained pursuant to an account agreement which specifies New York law as the governing law. In addition, the Collection Account shall be established and maintained at an institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account shall be held by the Indenture Trustee as secured party for the benefit of the Noteholders and, after payment in full of the Notes, as agent of the Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account shall be made only upon the terms and conditions of the Basic Documents. All amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the depository institution or trust company then maintaining the Collection Account in specified Permitted Investments that mature not later than the Business Day immediately prior to the Payment Date (or if the Rating Agency Condition is satisfied, not later than such Payment Date) for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. The Indenture Trustee shall not be liable for investment losses in Permitted Investments made in accordance with directions from the Servicer. In the event that the Collection Account is no longer to be maintained at the corporate trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit Account to be established as the Collection Account within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent).
(c) The Servicer shall, prior to the nature or sufficiency of any payment received by itClosing Date, or to present or file any claim or take any action to collect or enforce establish and maintain an administrative subaccount within the payment of any or all of Collection Account, which subaccount shall be designated as the Accounts"Principal Distribution Account". The Principal Distribution Account is established and maintained solely for administrative purposes.
(d) Debtor, at Lender’s request, The Servicer shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, prior to the Closing Date, cause an Eligible Deposit Account Debtors: (i) of Debtor’s grant of a security interest to be established and maintained, in the Accounts to Lender; and (ii) name "Whole Auto Loan Trust 2002-1 Certificate Distribution Account", initially at the corporate trust department of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallthe Owner Trustee, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed designated as the "Certificate Distribution Account". The Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Distribution Account pursuant to this Agreement and the Indenture shall be held by Debtor to Lender, with recourse.
(f) Lender the Owner Trustee as part of the Trust Property and shall have be applied as provided in the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Basic Documents. In the event that the Certificate Distribution Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines is no longer to be appropriate.
(g) Except as otherwise provided by maintained at the UCC and except for any corporate trust department of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsIndenture Trustee, the sale Servicer shall cause an Eligible Deposit Account to be established as the Certificate Distribution Account within ten (10) Business Days (or other disposition of such longer period not to exceed thirty (30) calendar days as to which gives rise each Rating Agency may consent). The Certificate Distribution Account will be established and maintained pursuant to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission account agreement which results in specifies New York law as the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsgoverning law.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Bear Stearns Asset Backed Fund Inc Whole Auto Loan Tr 2002-1)
Accounts. With respect to the AccountsNo Borrower has made, and without limiting Lender’s rights above:
(a) Lender may direct nor will any or all Borrower make, any agreement with any Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts Debtor for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court extension of law or equity which Lender determines to be appropriate time for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction ofAccount, any goods, the sale compromise or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account settlement for less than the full amount hereofthereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for prompt or early payment allowed by a Borrower and such other compromises or settlements in the ordinary course of its business consistent with historical practice and as previously disclosed to Lender in writing. With respect to the Accounts pledged as collateral pursuant to any Credit Document (a) the amounts shown on all invoices, statements and reports which may be delivered to the Lender with respect thereto are actually and absolutely owing to a Borrower as indicated thereon and are not in any way contingent; (b) no payments have been or shall be made thereon except payments immediately delivered to Lender as required hereunder; and (c) to each Corporate Credit Party’s knowledge all Account Debtors have the capacity to contract. As of the date of each Borrowing Base Certificate delivered to Lender, each Account listed thereon as an Eligible Account shall be an Eligible Account and all Inventory listed thereon as Eligible Inventory shall be Eligible Inventory. Each Borrower shall notify Lender promptly and in any event within two (2) Business Days after obtaining knowledge thereof (i) of any event or circumstance that to any Borrower’s knowledge would cause Lender to consider any then existing Account or Inventory as no longer constituting an Eligible Account or Eligible Inventory, as the case may be; (ii) of any material delay in any Borrower’s performance of any of its obligations to any Account Debtor; (iii) of any assertion by an Account Debtor of any material claims, offsets or counterclaims; (iv) of any failure or delay allowances, credits and/or monies granted by Lender in enforcing or collecting any payment under Borrower to any AccountAccount Debtor; or (v) of all material adverse information relating to the performance or observance financial condition of an Account Debtor; (vi) of any material return of goods; and (vii) of any loss, damage or all destruction of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any On or all Account Debtors to make payment directly to Lender or to before the Closing Date the Seller shall establish in its name a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection segregated account with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as a commercial bank satisfactory to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce Managing Facility Agent (the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate"Collection Account"). GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following Upon the occurrence and during the continuance of an Event a Remittance Event, and unless the Servicer has provided a Servicer Letter of DefaultCredit in accordance with subsection 2.15(a), Debtor: the Seller or the Servicer shall within two Business Days after its receipt, (i) shall immediately pay or deliver such payment to Lender in the original form in which 57 deposit all Collections received by Debtor; it directly into the Collection Account and (ii) transfer or cause to be transferred to the Concentration Account any Collections so deposited. Any amounts received by the Seller and not related to the Purchased Receivables or the related Contracts or Financed Aircraft shall endorse not be deposited into the Collection Account. Any amounts at any time on deposit in the Collection Account shall be transferred only to Lenderthe Concentration Account and to no other deposit or other account (including, but not limited to, any account or sub-account maintained pursuant to Raytheon's cash management system). The Seller hereby grants to the Managing Facility Agent for the ratable benefit of the Purchasers a security interest in the Collection Account and all amounts from time to time on deposit therein to secure the Obligations. The Seller shall have no right to withdraw any amounts on deposit in the Collection Account.
(b) On or before the Closing Date there shall be established with recourseand in the name of the Managing Facility Agent a segregated account (the "Concentration Account") which shall be maintained as a cash collateral account subject to the exclusive dominion and control of the Managing Facility Agent for the ratable benefit of the Purchasers. The Seller hereby grants to the Managing Facility Agent for the ratable benefit of the Purchasers a security interest in any of its right, title and interest in the Concentration Account and all checksamounts from time to time on deposit therein and all income from the investment of such amounts to secure, draftsin each case, money ordersthe Obligations. Funds on deposit from time to time in the Concentration Account shall bear interest at the then prevailing rate paid by the Managing Facility Agent for deposit accounts with similar amounts on deposit from time to time. If at any time funds on deposit in the Concentration Account are greater than $100,000, notesthe Managing Facility Agent may, but shall not be required to, unless it receives a request from the Seller or Raytheon, invest such funds in Cash Equivalents with maturities not later than the next succeeding Settlement Date, to the extent such requested Cash Equivalents are available for investment. Any investment request by the Seller or Raytheon shall be given to the Managing Facility Agent one Business Day prior to the day the investment is to be made (which shall be a Business Day in New York, New York and San Francisco, California) and shall specify the particular Cash Equivalents and maturities thereof. Any interest or investment earnings on amounts in the Concentration Account on related investments shall be retained in the Concentration Account to be withdrawn in accordance with this subsection 2.14(b). The Managing Facility Agent shall have the right to withdraw amounts from the Concentration Account to make the payments required to be made hereunder from Collections. Neither the Managing Facility Agent nor any Purchaser shall have any responsibility for any such investment and the Managing Facility Agent shall be permitted to liquidate any such investment, without liability for any loss occurring by reason of such liquidation, to the extent necessary to make payments and distributions under this Agreement. The Seller shall have no right to withdraw amounts on deposit from time to time in the Concentration Account.
(i) On or before the Closing Date there shall be established with and in the name of the Managing Facility Agent a segregated trust account comprised of two segregated sub-accounts, the Seller cash collateral sub-account (the "Seller Cash Collateral Sub-Account") and the RAC cash collateral sub-account (the "RAC Cash Collateral Sub-Account", the Seller Cash Collateral Sub-Account and the RAC Cash Collateral Sub-Account being referred to collectively as the "Cash Collateral Account") which shall be maintained as a cash collateral account subject to the exclusive dominion and control of the Managing Facility Agent for the ratable benefit of the Purchasers. The Seller hereby grants to the Managing Facility Agent for the ratable benefit of the Purchasers a first priority security interest in the Cash Collateral Account and all amounts on deposit from time to time therein and all income from the investment of such amounts to secure, in each case, the Obligations. Funds on deposit from time to time in the Seller Cash Collateral Sub-Account shall bear interest at the then prevailing rate paid by the Managing Facility Agent for deposit accounts with similar amounts on deposit from time to time. If at any time funds on deposit in the Seller Cash Collateral Sub-Account are greater than $100,000, the Managing Facility Agent may, but shall not be required to, unless it receives a request from the Seller, invest funds on deposit in the Seller Cash Collateral Sub- Account in Cash Equivalents with maturities not later than the next succeeding Settlement Date (or such other instruments maturities as the Seller shall request and the Managing Facility Agent shall approve), to the extent such requested Cash Equivalents are available for investment. Any investment request by the Seller shall be given to the Managing Facility Agent one Business Day prior to the day the investment is to be made (which shall be a Business Day in New York, New York and San Francisco, California) and shall specify the particular Cash Equivalents and maturities thereof. Any interest or documents representing such payment; investment earnings on amounts in the Seller Cash Collateral Sub-Account or related investments shall be retained in the Seller Cash Collateral Sub-Account to be withdrawn in accordance with paragraphs (ii), (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) of this subsection 2.14(c). Neither the Managing Facility Agent nor any Purchaser shall hold have any responsibility for any such investment and the Managing Facility Agent shall be permitted to liquidate any such investment, without liability for any loss occurring by reason of such liquidation, to the extent necessary to make payments and distributions under this Agreement. The Seller shall have no right to withdraw amounts on deposit from time to time in the Cash Collateral Account.
(ii) If on any Settlement Date on which the Seller is required to repurchase Defaulted Receivables pursuant to subsection 2.10 and fails for any reason to repurchase such Defaulted Receivables or substitute for such Defaulted Receivables pursuant to subsection 2.13, whether or not RAC fails to repurchase such Defaulted Receivables under the Repurchase Agreement, the Managing Facility Agent may withdraw from amounts on deposit in the Seller Cash Collateral Sub- Account on account of such Defaulted Receivable an amount equal to the lesser of (A) the Repurchase Price for such Defaulted Receivable plus any accrued and unpaid interest thereon required to be paid by subsection 2.10 and (B) the amount then on deposit in the Seller Cash Collateral Sub-Account. It is specifically understood and agreed that amounts on deposit in the Seller Cash Collateral Sub-Account, whether on account of 25% Repurchase Receivables, 75% Repurchase Receivables or 90% Repurchase Receivables, may be withdrawn as aforesaid on account of any Defaulted Receivable, regardless of the Repurchase Percentage associated therewith or whether the RAC Repurchase Obligation shall be outstanding. Any amounts so withdrawn shall be deposited into the Concentration Account and allocated and distributed pursuant to subsections 2.15 and 2.16, respectively. The Seller agrees with the Managing Facility Agent and the Purchasers to deposit into the Seller Cash Collateral Sub-Account, without any requirement for notice or demand therefor, the lesser of the amount withdrawn therefrom or the sum of the Repurchase Obligation then in effect on the date such withdrawal is made, plus interest thereon at a rate per annum equal to the Default Rate for the period from such date of withdrawal to such date of deposit. Deposit of amounts into the Seller Cash Collateral Sub-Account pursuant to the preceding sentence shall, to the extent of such deposit, satisfy the Seller's obligation to repurchase such Defaulted Receivable pursuant to subsection 2.10.
(iii) If the Seller or the Servicer (if then Raytheon Credit or any Affiliate thereof) shall fail to make any deposit, payment separate or transfer of funds required to be made by the Seller or the Servicer under this Agreement or any other document executed and apart delivered in connection herewith, including, without limitation, any payment, deposit or transfer of funds or payment of any indemnity required to be made pursuant to subsection 2.7(b), 2.10, 2.10A, 2.11, 2.12, 2.18 or 9.1 (each such payment, deposit or transfer, a "Reimbursable Obligation"), then the Managing Facility Agent with the consent of the Majority Purchasers may, in addition to any similar rights in favor of the Managing Facility Agent under the Repurchase Agreement, withdraw from Debtor’s the Seller Cash Collateral Sub-Account on the date such Reimbursable Obligation is due hereunder an amount equal to the lesser of (A) such Reimbursable Obligation and (B) the amount then on deposit in the Seller Cash Collateral Sub-Account. The Seller agrees with the Managing Facility Agent and the Purchasers to deposit in the Seller Cash Collateral Sub-Account, without any requirement for notice or demand therefor, the amount withdrawn on the date such withdrawal is made, plus interest thereon at a rate per annum equal to the Default Rate for the period from such date of withdrawal to such date of deposit.
(iv) No amounts on deposit in the Seller Cash Collateral Sub-Account (including interest or investment earnings) shall be released to the Seller until the Outstanding Purchase Price is reduced to zero and all other funds and property amounts owing to the Managing Facility Agent or any Purchaser hereunder are paid in an express trust for Lender until paid or delivered to Lender.full, provided, that,
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct any The Exchangor and PHF shall enter into the Master Trust Agreement with Wachovia Bank, National Association, pursuant to which the Exchangor and PHF shall maintain one or all more Joint Disbursement Accounts and a Reservoir Account. One or more Joint Collection Accounts have been established and will be maintained by the Chesapeake Trustee in accordance with Section 5.1 of the Base Indenture, in the name of “JPMorgan Chase Bank, National Association, as Trustee, and PHH Funding, LLC, as Qualified Intermediary for Chesapeake Finance Holdings LLC” and shall be operated in accordance with the terms of this Agreement and the Indenture. Initially, the Joint Collection Accounts will be maintained at JPMorgan Chase Bank, National Association and Bank of America, N.A. The Joint Disbursement Accounts and the Joint Collection Accounts are intended to qualify within the definition of “Joint Accounts” described in Section 5.02 of Revenue Procedure 2003-39. The Reservoir Account Debtors to make payment directly to Lender or to will be opened by WBNA as a specified agent “qualified trust” (within the meaning of LenderSection 1.1031(k)-1(g)(3)(iii) of the Treasury Regulations) under the Master Trust Agreement, for the benefit of PHF and Exchangor.
(b) Lender may demandThe Joint Collection Accounts are intended to facilitate the orderly and efficient collection of proceeds from the disposition of the Relinquished Property, collectincluding the collection of all Relinquished Property Proceeds, receive and give receipts to allow for any the identification and all money and other property due separation of funds that are Relinquished Property Proceeds from funds that are Non-Qualified Funds. All payments made by Buyers to or on behalf of PHF or the Exchangor in respect of sales of Relinquished Property shall be made directly to become due in connection with the Accounts, in Lender’s or Debtor’s namea Joint Collection Account.
(c) Lender may file any claim The Joint Disbursement Accounts are intended to facilitate the orderly and take any other action in any court efficient disbursement of law or equity which Lender determines funds to be appropriate for Sellers, including the purpose disbursement of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as funds relating to the nature or sufficiency acquisition of any payment received by it, or to present or file any claim or take any action to collect or enforce Replacement Property under the payment of any or all of the AccountsLKE Program.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the The Reservoir Account Debtors: is intended (i) to receive all Relinquished Property Proceeds that are not used for other qualified purposes including, but not limited to, the payment of Debtor’s grant of a security interest in the Accounts to Lender; Liabilities Due on Transfer and (ii) to provide Relinquished Property Proceeds to the Joint Disbursement Accounts (to the extent of the funds deposited in the Reservoir Account and any income earned on the investment thereof pursuant to the Master Trust Agreement). Relinquished Property Proceeds on deposit in the Joint Collection Accounts shall be deposited into the Reservoir Account to the extent, and only to the extent, that any portion of such additional information proceeds remain in such Joint Collection Accounts after all Liabilities Due on Transfer, including the outstanding Loans and instructions concerning Lender’s rights all other amounts payable under this Security Agreement as Lender the Loan Agreement, have been paid in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENTfull.
(e) Debtor shallPursuant to the Master Trust Agreement, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts Relinquished Property Proceeds held in the same form as received by Debtor, each of which Reservoir Account shall be properly endorsed by Debtor invested until such funds are distributed to Lender, with recoursea Joint Disbursement Account in order to purchase Replacement Property.
(f) Lender All Relinquished Property Proceeds (and any earnings thereon), whether in a Joint Collection Account, a Joint Disbursement Account or the Reservoir Account, shall be held subject to Sections 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-1(g)(6) of the Treasury Regulations, including the restrictions on the Exchangor’s right to receive, pledge, borrow, or otherwise obtain the benefits of Relinquished Property Proceeds and earnings thereon held by PHF. Notwithstanding that, prior to the occurrence of a Distribution Event with respect to the related Relinquished Property, the Exchangor shall have the no right to settlereceive, accept reduced amountspledge, adjust disputes and claims directly withborrow, and give releases or otherwise obtain the benefits of Relinquished Property Proceeds or the earnings thereon held by either PHF or the bank maintaining the account where such Relinquished Property Proceeds are on behalf of Debtor deposit, Relinquished Property Proceeds received with respect to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines Relinquished Property Subject to Liabilities shall be appropriate.
(g) Except as otherwise provided by applied to the UCC and except for any payment of the following arising from Lenderrelated Liabilities Due on Transfer, including the outstanding Loans and all other amounts payable under the Loan Agreement, as provided in Sections 2.2(b) and 4.2(b). Upon any Distribution Event with respect to Relinquished Property, PHF shall, at such time and in satisfaction of PHF’s or remaining obligations under this Agreement as to the related Exchange, have the bank maintaining the Account where the related Relinquished Property Proceeds are on deposit pay any Lender’s gross negligence or willful misconductremaining amount of such Relinquished Property Proceeds, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy inincluding without limitation accumulated interest thereon, damage to, or loss or destruction of, any goodsas directed by, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsExchangor.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Master Exchange Agreement (PHH Corp)
Accounts. (a) The Servicer has established various accounts in the name of the Paying Agent (the "Local Collection Accounts"), at the locations identified in the Local Collection Account Processing Agreement attached as Exhibit A hereto. Each Local Collection Account shall be maintained as an Eligible Deposit Account and shall bear a designation clearly indicating that the amounts deposited thereto and held therein are for the benefit of the Purchaser, as provided in the Local Collection Account Agreement. All payments on the Receivables not mailed by Obligors or any other Person to the Lock-Box Account which are otherwise delivered to the Seller or the Servicer shall be deposited on a daily basis into the applicable Local Collection Account, from which they will be swept within two Business Days to the Collection Account. Amounts on deposit in any Local Collection Account shall not be invested.
(i) On or prior to the Closing Date, the Servicer shall establish, or cause to be established with the Paying Agent, an account in the name of the Purchaser (the "Collection Account"), which shall be maintained as an Eligible Deposit Account and shall bear a designation clearly indicating that the amounts deposited thereto are held for the benefit of the Purchaser. The Paying Agent shall cause any amounts deposited to the Lock-Box Account or to any Local Collection Account on or with respect to the Receivables to be swept into the Collection Account as promptly as possible, but in no event later than the second Business Day following receipt thereof in the Local Collection Accounts. The Seller, the Servicer and the Paying Agent shall follow the daily operating procedures set forth in Schedule E hereto with respect to collections on the Receivables.
(ii) Funds on deposit in the Collection Account shall be invested by the Paying Agent in Eligible Investments selected in writing by the Purchaser; provided that such selection shall not conflict with the last two sentences of the following clause (iii). All such Eligible Investments shall be held by the Paying Agent for the benefit of the Purchaser.
(iii) On each Payment Determination Date all interest and other investment income (net of losses and investment expenses) on funds on deposit in the Collection Account shall be deemed to constitute a portion of the Interest Distribution Amount for the related Distribution Date. Funds on deposit in the Collection Account shall be invested in Eligible Investments that will mature not later than the Business Day immediately preceding the next Distribution Date; provided that such requirement shall be deemed fulfilled for all Eligible Investments falling under paragraph (d) of the definition thereof. Funds deposited in the Collection Account on a day which immediately precedes a Distribution Date upon the maturity of any Eligible Investments are not required to be invested overnight.
(iv) The Paying Agent shall not be held liable in any way by reason of any insufficiency in the Collection Account resulting from any loss on an Eligible Investment included therein, except for losses attributable to the Paying Agent's failure to make payments on such Eligible Investments issued by the Paying Agent, in its commercial capacity as principal obligor and not as Paying Agent, in accordance with their terms.
(i) The Purchaser shall possess all right, title and interest in all funds in respect of the Receivables received in the Local Post Office Boxes and all funds on deposit from time to time in the Local Collection Accounts and the Collection Account and in all proceeds thereof (including all income thereon), subject to the Local Collection Account Agreement. The Local Post Office Boxes, the Local Collection Accounts and the Collection Account shall be under the sole dominion and control of the Paying Agent on behalf of the Purchaser, subject to the Local Collection Account Agreement. If, at any time, any Local Collection Account or the Collection Account ceases to be an Eligible Deposit Account, the Paying Agent, on the Purchaser's behalf, shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, as to which the Purchaser may consent) establish a new Local Collection Account or Collection Account, as applicable, as an Eligible Deposit Account and shall transfer any cash and/or any investments from the account that is no longer an Eligible Deposit Account to the new Local Collection Account or Collection Account.
(ii) With respect to the AccountsCollection Account Property, and without limiting Lender’s rights abovePaying Agent agrees that:
(A) any Collection Account Property that is held in deposit accounts shall be held by the Paying Agent solely in the Eligible Deposit Accounts, subject to the last sentence of Section 4.02(c)(i);
(B) any Collection Account Property that constitutes Physical Property shall be delivered to the Paying Agent in accordance with paragraph (a) Lender may direct of the definition of "Delivery" and shall be held, pending maturity or disposition, solely by the Paying Agent or a financial intermediary (as such term is defined in Section 8-313(4) of the UCC) acting solely for the Paying Agent;
(C) any Collection Account Property that is a book-entry security held through the Federal Reserve System pursuant to federal book-entry regulations shall be delivered in accordance with paragraph (b) of the definition of "Delivery" and shall be maintained by the Paying Agent, pending maturity or all disposition, through continued book-entry registration of such Collection Account Debtors Property as described in such paragraph; and
(D) any Collection Account Property that is an "uncertificated security" under Article VIII of the UCC and that is not governed by clause (C) above shall be delivered to make payment directly to Lender the Paying Agent in accordance with paragraph (c) of the definition of "Delivery" and shall be maintained by the Paying Agent, pending maturity or to a specified agent disposition, through continued registration of Lenderthe Paying Agent's (or its nominee's) ownership of such security.
(biii) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Accountsprior approval of the Purchaser, in Lender’s or Debtor’s name.
(c) Lender may file any claim the Servicer shall have the power to instruct the Paying Agent to make withdrawals and take any other action in any court of law or equity which Lender determines to be appropriate payments from the Collection Account for the purpose of collecting any or all of permitting the Accounts; provided, however, that Lender shall not be obligated in any manner Servicer to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountscarry out its respective duties hereunder.
(div) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice It is expressly agreed to by the parties hereto that in form acceptable to Lender, to no event shall the Account Debtors: (i) Paying Agent have any liability in respect of Debtor’s grant the actions made by any other Person in respect of a security interest in the Accounts to Lender; and method of "Delivery" as required by subsection (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourseabove.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Servicing Agreement (First Merchants Acceptance Corp)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender In order to permit Bank to monitor Borrower’s financial performance and condition, Borrower, and all Borrower’s Subsidiaries, shall maintain all of its and its Subsidiaries’ domestic depository and operating accounts with Bank, or SVB Securities. In addition, Borrower, and all Borrower’s Subsidiaries, shall maintain fifty percent (50%) or more of Borrower’s, and such Subsidiaries’, securities accounts with Bank or SVB Securities. Notwithstanding the foregoing, Borrower may direct maintain Account Number ▇▇▇▇▇▇▇ at Citizens Bank of Massachusetts (the “Citizens Account”), which account has been pledged to Citizens Bank of Massachusetts, provided that the amount that Borrower shall maintain in the Citizens Account at any one time shall be no greater than Six Million Two Hundred Fifty Thousand Dollars ($6,250,000.00). Furthermore, in the event that the total amount of cash and securities on deposit in all accounts maintained by Borrower at Bank or all Account Debtors to make payment directly to Lender or to a specified agent of LenderSVB Securities is less than Seventy Million Dollars ($70,000,000.00), Bank, at its sole discretion, may impose additional reasonable fees, which shall be due and payable by Borrower.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or Borrower shall identify to become due in connection with the AccountsBank, in Lenderwriting, any bank or securities account opened by Borrower with any institution other than Bank. In addition, for each such account that Borrower at any time opens or maintains, Borrower shall, at Bank’s request and option, pursuant to an agreement in form and substance acceptable to Bank, cause the depository bank or Debtor’s name.
(c) Lender may file any claim securities intermediary to agree that such account is the collateral of Bank, and take any other action in any court of law or equity which Lender determines enter into a “control agreement” pursuant to be appropriate for the purpose of collecting any or all of terms hereunder. Notwithstanding the Accounts; providedforegoing, however, that Lender Borrower shall not be obligated required to cause Fidelity Investments to enter into a control agreement with Bank with respect to Borrower’s securities account maintained at Fidelity Investments (the “Fidelity Account”), provided that the balance maintained by Borrower in the Fidelity Account does not, at any manner time, exceed Three Million Dollars ($3,000,000.00). The provisions of the previous sentence shall not apply to make any demand deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or to make any inquiry as for the benefit of Borrower’s employees. Notwithstanding the foregoing, Bank shall not require a control agreement with respect to the nature or sufficiency Citizens Account until the repayment in full and termination of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment Borrower’s loan arrangement with Citizens Bank of any or all of the AccountsMassachusetts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Servicer shall, prior to the Closing Date, cause to be established and maintained an Eligible Deposit Account in the name "JPMorgan Chase Bank, as Indenture Trustee, as secured party from USAA Auto Owner Trust 2002-1", initially at the corporate trust department of the Indenture Trustee, which shall be designated as the "Collection Account". The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided, that the Servicer may make deposits to and direct any or all Account Debtors the Indenture Trustee in writing to make withdrawals from the Collection Account in accordance with the terms of the Basic Documents. The Collection Account will be established and maintained pursuant to an account agreement which specifies New York law as the governing law. In addition, the Collection Account shall be established and maintained at an Institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account shall be held by the Indenture Trustee as secured party for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lenderthe Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account shall be made only upon the terms and conditions of the Basic Documents. If the Servicer is required to remit collections pursuant to the first sentence of Section 4.2, all amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Collection Account in specified Permitted Investments that mature not later than the Business Day immediately prior to the Payment Date for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. All interest and other income (net of losses and investment expenses) on funds on deposit in the Collection Account shall be withdrawn from the Collection Account at the written direction of the Servicer and shall be paid to the Servicer. The Indenture Trustee shall not be liable for investment losses in Permitted Investments made in accordance with directions from the Servicer. In the event that the Collection Account is no longer to be maintained at the corporate trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit Account to be established as the Collection Account within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent).
(b) Lender may demandThe Servicer shall, collectprior to the Closing Date, receive establish and give receipts maintain an administrative subaccount within the Collection Account at the bank or trust company then maintaining the Collection Account, which subaccount shall be designated as the "Principal Distribution Account". The Principal Distribution Account is established and maintained solely for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s nameadministrative purposes.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines The Servicer shall, prior to the Closing Date, cause an Eligible Deposit Account to be appropriate for established and maintained, in the purpose of collecting any or all name "USAA Auto Owner Trust 2002-1 Certificate Distribution Account", initially at the corporate trust department of the Accounts; providedOwner Trustee, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed designated as the "Certificate Distribution Account". The Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Distribution Account pursuant to this Agreement and the Indenture shall be held by Debtor to Lender, with recourse.
(f) Lender the Owner Trustee as part of the Trust Property and shall have be applied as provided in the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Basic Documents. In the event that the Certificate Distribution Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines is no longer to be appropriate.
(g) Except as otherwise provided by maintained at the UCC and except for any corporate trust department of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goodsOwner Trustee, the sale Servicer shall cause an Eligible Deposit Account to be established as the Certificate Distribution Account within ten (10) Business Days (or other disposition of such longer period not to exceed thirty (30) calendar days as to which gives rise each Rating Agency may consent). The Certificate Distribution Account will be established and maintained pursuant to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission account agreement which results in specifies New York law as the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsgoverning law.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Usaa Acceptance LLC Auto Owner Trust 2002-1)
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender The Servicer shall, prior to the Closing Date, cause to be established and maintained an Eligible Deposit Account in the name "JPMorgan Chase Bank, as Indenture Trustee, as secured party from USAA Auto Owner Trust 2003-1", initially at the corporate trust department of the Indenture Trustee, which shall be designated as the "Collection Account". The Collection Account shall be under the sole dominion and control of the Indenture Trustee; provided, that the Servicer may make deposits to and direct any or all Account Debtors the Indenture Trustee in writing to make withdrawals from the Collection Account in accordance with the terms of the Basic Documents. The Collection Account will be established and maintained pursuant to an account agreement which specifies New York law as the governing law. In addition, the Collection Account shall be established and maintained at an institution which agrees in writing that for so long as the Notes are outstanding it will comply with entitlement orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee without further consent of the Issuer. All monies deposited from time to time in the Collection Account shall be held by the Indenture Trustee as secured party for the benefit of the Noteholders and, after payment directly to Lender or to a specified in full of the Notes, as agent of Lenderthe Issuer and as part of the Trust Property. All deposits to and withdrawals from the Collection Account shall be made only upon the terms and conditions of the Basic Documents. If the Servicer is required to remit collections pursuant to the first sentence of Section 4.2, all amounts held in the Collection Account shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Collection Account in specified Permitted Investments that mature not later than the Business Day immediately prior to the Payment Date for the Collection Period to which such amounts relate and such Permitted Investments shall be held to maturity. All interest and other income (net of losses and investment expenses) on funds on deposit in the Collection Account shall be withdrawn from the Collection Account at the written direction of the Servicer and shall be paid to the Servicer. The Indenture Trustee shall not be liable for investment losses in Permitted Investments made in accordance with directions from the Servicer. In the event that the Collection Account is no longer to be maintained at the corporate trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's or Issuer's assistance as necessary, cause an Eligible Deposit Account to be established as the Collection Account within ten (10) Business Days (or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent) and give written notice of the location and account number of such account to the Indenture Trustee.
(b) Lender may demandThe Servicer shall, collectprior to the Closing Date, receive establish and give receipts maintain an administrative subaccount within the Collection Account at the bank or trust company then maintaining the Collection Account, which subaccount shall be designated as the "Principal Distribution Account". The Principal Distribution Account is established and maintained solely for any and all money and other property due or to become due in connection with the Accounts, in Lender’s or Debtor’s nameadministrative purposes.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines The Servicer shall, prior to the Closing Date, cause an Eligible Deposit Account to be appropriate for established and maintained, in the purpose of collecting any or all name "USAA Auto Owner Trust 2003-1 Certificate Distribution Account", initially at the corporate trust department of the Accounts; providedOwner Trustee, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed designated as the "Certificate Distribution Account". The Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee. All monies deposited from time to time in the Certificate Distribution Account pursuant to this Agreement and the Indenture shall be held by Debtor the Owner Trustee as part of the Trust Property and shall be applied as provided in the Basic Documents. In the event that the Certificate Distribution Account is no longer to Lenderbe maintained at the corporate trust department of the Owner Trustee, with recourse.
the Servicer shall cause an Eligible Deposit Account to be established as the Certificate Distribution Account within ten (f10) Lender shall have the right Business Days (or such longer period not to settle, accept reduced amounts, adjust disputes and claims directly with, exceed thirty (30) calendar days as to which each Rating Agency may consent) and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any written notice of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not location and account number of such account to the Owner Trustee. The Certificate Distribution Account will be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise established and maintained pursuant to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission account agreement which results in specifies New York law as the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accountsgoverning law.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Usaa Auto Owner Trust 2003-1)
Accounts. With (a) Unless otherwise specified in the UTI Supplement, the Titling Trustee will establish and maintain with respect to the Accounts, Undivided Trust Interest a Lease Funding Account satisfying the definition of an Eligible Account. The Lease Funding Account shall be established and without limiting Lender’s rights above:
(a) Lender may direct any or all Account Debtors to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due or to become due maintained in connection with the Accounts, in Lender’s or Debtor’s name.
(c) Lender may file any claim and take any other action in any court of law or equity which Lender determines to be appropriate for the purpose of collecting any or all name of the AccountsTitling Trustee on behalf of the UTI Sub-Trust. None of the Grantor, any Beneficiary or, subject to Section 7.02(c), the holder or pledgee of any UTI Certificate or SUBI Certificate shall have any right to draw on the Lease Funding Account without the express written consent of the Titling Trustee; provided, however, that Lender the Titling Trustee, with the express written consent of the related UTI Beneficiary, shall so consent to the extent provided for in the documentation relating to any Securitized Financing of such UTI Certificate or SUBI Certificate. The Lease Funding Account shall only contain funds relating to UTI Assets.
(b) For so long as the Monthly Remittance Conditions are satisfied, the Servicer shall not be obligated required to remit to the Lease Funding Account collections in respect of any Titling Trust Assets allocable to the Lease Funding Account on a daily basis but shall be entitled to retain such collections, without segregation from its other funds, until the Business Day preceding the date identified as a "Distribution Date" in the related UTI Supplement, at which time the Servicer shall so remit all such collections in immediately available funds; provided that (i) investments on which the Trust Agent is the obligor (including repurchase agreements as to which it, in its commercial capacity, is liable as principal), may mature on the Distribution Date, and (ii) investments made of collections on deposit in a SUBI Collection Account in respect of the related Contracts and Leased Vehicles may mature on such dates as specified by the Titling Trustee at the Servicer's direction so as to maintain the availability of sufficient cash to make the payments described in any manner SUBI Supplement or related SUBI Servicing Supplement. Notwithstanding the foregoing, commencing with the first day of the first period identified as a "Collection Period" in the related UTI Supplement or SUBI Supplement, as the case may be, that begins at least two Business Days after the day on which any Monthly Remittance Conditions cease to make any demand be satisfied and for so long as the Monthly Remittance Conditions are not satisfied, all collections in respect of the UTI Assets or to make any inquiry the related SUBI Assets, as applicable, then held by the Servicer shall be immediately so deposited and all such future collections shall be so remitted by the Servicer to the nature appropriate account in accordance with this Agreement or sufficiency the related SUBI Servicing Supplement, as applicable, on a daily basis within two Business Days after receipt thereof. Each SUBI Servicing Supplement shall also provide (i) the terms on which any other funds received by any Servicer, including funds transferred from any of the SUBI Collection Accounts to the extent of (1) the net investment value (as recorded on the books of the Titling Trust) of any payment Contracts and Leased Vehicles allocated to a SUBI in a Trust Asset Transfer, (2) reimbursement of any Servicer Advances provided for in any Securitized Financing with respect to such SUBI or (3) funding for such SUBI's share of any allocable Titling Trust Expenses will be deposited by the Servicer into the Lease Funding Account (or transferred directly to the Servicer, Grantor or UTI Beneficiary directly, as appropriate) and (ii) whether and under what circumstances any other funds received by itthe Servicer with respect to a SUBI Asset, including income with respect to any investment made in any SUBI Account, shall be deposited by the Servicer into an appropriate SUBI Account.
(c) Except as otherwise provided in Section 7.03, a UTI Supplement or a SUBI Supplement, all Titling Trust Expenses shall be paid out of the Lease Funding Account or from monies held by the Servicer and allocable thereto or distributable in respect thereof, including: (i) any reimbursement due to present the Servicer for payments from its own operating accounts in order to fund (A) amounts due to Dealers in payment for the assignment to the Titling Trustee of Contracts and Leased Vehicles occurring prior to the Titling Trustee's notice to the Servicer to cease acquiring Contracts and Leased Vehicles on behalf of the Titling Trustee given pursuant to Section 7.02(c)(ii) and (B) any other Advances made by the Servicer with the consent of the Titling Trustee (to be given at the direction of the UTI Beneficiary or file any claim or take any action to collect or enforce in accordance with the payment terms of any Securitized Financing), with respect to any Contract or all Leased Vehicle, (ii) Servicer fees (and expenses, if any, not covered by the Servicer fee under any SUBI Servicing Supplement), (iii) Titling Trustee fees and expenses and (iv) other Titling Trust Expenses, if any; provided, however, that, to the extent that any Liability of the AccountsTitling Trustee or any Beneficiary is incurred in respect of Affected Trust Assets allocated to one or more Sub-Trusts, then such Liability shall be borne in accordance with Section 3.04, and the Titling Trustee, at the direction of the Servicer, shall transfer periodically from the related SUBI Collection Accounts to the Lease Funding Account each Sub-Trust's appropriate share of such aggregate Liabilities of the Titling Trust. Prior to the funding of the Lease Funding Account from collections on outstanding Contracts or otherwise, the UTI Beneficiary will advance monies to fund the origination of Contracts as described in the UTI Supplement. The UTI Supplement or any SUBI Supplement may provide that all or any portion of the collections on the related UTI Assets or SUBI Assets will be deposited in the Lease Funding Account or the related SUBI Lease Funding Account for a period of time specified therein. Prior to the creation of a SUBI, the expenses of the Titling Trust will be advanced by the UTI Beneficiary or funded from collections on the Contracts in the UTI Portfolio, as more fully described in the UTI Supplement. Thereafter, during any period during which there are no monies on deposit in the Lease Funding Account, expenses of the Titling Trust will be advanced by the UTI Beneficiary as and to the extent provided in the UTI Supplement and each SUBI Supplement.
(d) DebtorAll or a portion of the funds deposited into the Lease Funding Account shall be separately invested by the Titling Trustee from time to time at the direction of the UTI Beneficiary or its designee in any of the Permitted Investments; provided, at Lender’s requesthowever, that should the terms of any Securitized Financing impose any more stringent limits on the types or tenors of permitted investments in the Lease Funding Account than are provided for in the definition of Permitted Investments, such limits shall apply thereto for the period specified in the related Transaction Documents. The Servicer is hereby made the designee of the UTI Beneficiary for such purpose. All income, gain or loss from investment of monies in the Lease Funding Account shall, unless otherwise specified in the Transaction Documents with respect to any Securitized Financing, be for the account of the UTI Beneficiary; provided that each such investment shall be made in the name of the Titling Trustee, its nominee or its Financial Intermediary. If at any time the relevant Beneficiary or its designee shall not have given the Titling Trustee a timely investment directive with respect to any account, the Titling Trustee shall invest and Lender, at Lender’s option may, give notice reinvest any monies in form acceptable to Lender, to such account(s) in a mutual fund offered by the Account Debtors: Trust Agent or an Affiliate thereof meeting the requirements of clause (i) of Debtor’s grant the definition of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recoursePermitted Investments.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Trust and Servicing Agreement (Toyota Auto Lease Trust 1997-A)
Accounts. With respect The Indenture Trustee shall establish the Issuance Fund, the Revenue Fund, the Reserve Fund, the Pre-Funding Account and the Collection Account (collectively, the "Accounts") in the name of the Indenture Trustee for the benefit of the Noteholders and the Note Insurer, as their interests may appear. The Collection Account shall be a segregated account established with the Collection Account Depository and the remaining foregoing Accounts and funds shall be segregated accounts established with the Corporate Trust Office of the Indenture Trustee. Each Account shall be an Eligible Account; provided that if an Account ceases to be an Eligible Account, all funds in such Account shall be deposited into an Eligible Account within 30 days of the Accountsdate an Authorized Officer of the Indenture Trustee first has knowledge of, and without limiting Lender’s rights above:
or receives written notice of, the fact that an Account is no longer an Eligible Account. Amounts held in the Accounts (aother than the Collection Account) Lender shall be invested by the Indenture Trustee, upon the written direction of the Administrator, in Eligible Investments; provided that amounts paid under the Note Guaranty Insurance Policy shall not be invested. Each investment shall mature no later than the applicable Transfer Date, except that investments in funds or accounts under which JPMorgan Chase Bank or an Affiliate thereof is the investment adviser or the investment manager may direct any or all Account Debtors be held until the date on which funds are intended to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts be used. The Indenture Trustee shall not be responsible for any losses incurred on any such investments unless the Indenture Trustee or an Affiliate thereof is the obligor under such investments. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investments prior to its stated maturity or the failure of the Administrator to provide written directions. Any written investment direction from the Administrator shall certify that any such investment is authorized by this Section 5.01 and all money and other property due is an Eligible Investment. All amounts received as earnings on or to become due in connection with the Accounts, in Lender’s income from any investments or Debtor’s name.
(c) Lender may file any claim and take any other action reinvestments of funds in any court of law or equity which Lender determines Account shall be credited to be appropriate for the purpose of collecting any or all of the Accountssuch Account; provided, however, that Lender on each Transfer Date, the Indenture Trustee shall not be obligated in transfer all amounts received as earnings on or income from any manner to make any demand investments or to make any inquiry as to the nature or sufficiency reinvestments of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accounts.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice in form acceptable to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest funds in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines the Revenue Fund prior to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for making any of the following arising from Lender’s transfers or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible payments referred to in any way or under any circumstances to Debtor or any other party for: (iSection 5.05(c) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the Accounts.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or prior to the Closing Date, the Servicer shall establish each Account in the name of the Borrower and each Account shall be a segregated, non-interest bearing trust account established with the Securities Intermediary, who shall forward funds from the Collection Account to the Collateral Agent upon its request for application by the Collateral Agent pursuant to Section 8.3(a). If at any or all time a Responsible Officer of the Collateral Agent obtains actual knowledge that any Account Debtors ceases to make payment directly be an Eligible Account (with notice to Lender or the Servicer and the Facility Agent), then the Servicer shall transfer such account to a specified agent another institution such that such account shall meet the requirements of Lenderan Eligible Account.
(b) Lender may demandAll amounts held in the Principal Collection Account and the Interest Collection Account shall, collectto the extent permitted by Applicable Law, receive be invested by the Collateral Agent, as directed by the Servicer in writing (or, if the Servicer fails to provide such direction, such amounts shall remain uninvested), in Permitted Investments that mature with respect to the Principal Collection Account and the Interest Collection Account, not later than one Business Day prior to the Distribution Date for the Accrual Period to which such amounts relate. Any such written direction shall certify that any such investment is authorized by this Section 8.1. Investments in Permitted Investments shall be made in the name of the Securities Intermediary, and, except as specifically required below, such investments shall not be sold or disposed of prior to their maturity. If any amounts are needed for disbursement from the Principal Collection Account or the Interest Collection Account and sufficient uninvested funds are not available therein to make such disbursement, the Collateral Agent shall cause to be sold or otherwise converted to cash a sufficient amount of the investments in such account to make such disbursement in accordance with and upon the written direction of the Servicer or, if the Servicer shall fail to give receipts such direction, the Facility Agent. The Collateral Agent shall, upon written request, provide the Facility Agent with all information in its possession regarding transfer into and out of the Collection Account (including, but not limited to, the identity of the counterparty making or receiving such transfer). In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the Servicer or the Facility Agent, as applicable, to timely provide investment instructions or disposition instructions, as applicable, to the Collateral Agent. To the extent agreed to by the Borrower or the Servicer, the Collateral Agent or the Collateral Custodian and all money and other property due or their respective Affiliates shall be permitted to become due receive additional compensation that could be deemed to be in connection with the Accounts, in LenderCollateral Agent’s or Debtorthe Collateral Custodian’s nameeconomic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments, and (iii) effecting transactions in certain investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to this Agreement.
(c) Lender Neither the Borrower nor the Servicer shall have any rights of direction or withdrawal, with respect to amounts held in any Account, except to the extent explicitly set forth herein. Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a). For all U.S. federal income tax reporting purposes, all income earned on the funds invested and allocable to the Accounts is legally owned by the Borrower (and beneficially owned by the Borrower). The Borrower is required to provide to Computershare Trust Company, N.A. in its capacity as Securities Intermediary (i) an IRS Form W-9 no later than the Closing Date and (ii) any additional IRS forms (or updated versions of any previously submitted IRS forms) or other documentation at such time or times required by Applicable Law or upon the reasonable request of the Securities Intermediary as may file be necessary (a) to reduce or eliminate the imposition of U.S. withholding taxes and (b) to permit the Securities Intermediary to fulfill its tax reporting obligations under Applicable Law with respect to the Accounts or any claim amounts paid to the Borrower. The Borrower is further required to report to the Securities Intermediary any change in the legal or beneficial ownership of the income allocable to the Accounts. Computershare Trust Company, N.A., both in its individual capacity and take in its capacity as Securities Intermediary, shall have no liability to the Borrower or any other action person in connection with any court tax withholding amounts paid, or retained for payment, to a governmental authority from the Accounts arising from the Borrower’s failure to timely provide an accurate, correct and complete IRS Form W-9 or such other documentation contemplated under this paragraph. For the avoidance of law or equity which Lender determines doubt, no funds shall be invested with respect to be appropriate for such Accounts absent the purpose of collecting any or all of the Accounts; provided, however, that Lender shall not be obligated in any manner to make any demand or to make any inquiry as Securities Intermediary having first received (x) instructions with respect to the nature or sufficiency investment of any payment received such funds and (y) the forms and other documentation required by it, or to present or file any claim or take any action to collect or enforce the payment of any or all of the Accountsthis paragraph.
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option The Equityholder may, give notice from time to time in form acceptable to Lender, its sole discretion (x) deposit amounts into the Principal Collection Account and/or (y) transfer Eligible Collateral Obligations as equity contributions to the Account Debtors: (i) of Debtor’s grant of a security interest Borrower. All such amounts will be included in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights each applicable compliance calculation under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shallAgreement, promptly following Lender’s requestincluding, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instrumentswithout limitation, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts in the same form as received by Debtor, each of which shall be properly endorsed by Debtor to Lender, with recourse.
(f) Lender shall have the right to settle, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf of Debtor to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriate.
(g) Except as otherwise provided by the UCC and except for any calculation of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, Borrowing Base and the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to any or all of the Collateral, including the AccountsMinimum Equity Test.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Accounts. With respect to Debtor covenants and agrees with Secured Party that from and after the date of this Agreement and until termination of this Agreement that:
(i) Debtor shall keep its chief place of business and chief executive office and the office where it keeps its records concerning the Accounts, and without limiting Lender’s rights above:the offices where it keeps all originals of all chattel paper which evidence Accounts, at the Premises. Debtor will hold and preserve such records (in accordance with Secured Party's usual document retention practices) and chattel paper and will permit representatives of Secured Party at any time during normal business hours to inspect, copy and make abstracts from such records and chattel paper;
(aii) Lender may direct any or all Account Debtors Except as otherwise provided in this subsection (ii), Debtor shall continue to make payment directly to Lender or to a specified agent of Lender.
(b) Lender may demand, collect, receive and give receipts for any and at its own expense, all money and other property amounts due or to become due in Debtor under the Accounts. In connection with such collections, Debtor may, take (and, at the AccountsSecured Party's discretion, in Lender’s shall take) such action as Debtor or Debtor’s name.
(c) Lender Secured Party may file any claim and take any other action in any court deem necessary of law or equity which Lender determines advisable to be appropriate for the purpose of collecting any or all enforce collection of the Accounts; provided, PROVIDED however, that Lender Secured Party shall not be obligated in have the right at any manner time upon written notice to Secured Party of its intention to do so, to notify the account debtors or obligors under any Account of the assignment of such Account to Secured Party and to direct such account debtors or obligors to make any demand payment of all amounts due or to make become due to Debtor thereunder directly to Secured Party and, upon such notification and at the expense of Debtor, to enforce collection of any inquiry as such Account, and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the nature or sufficiency same extent as Debtor might have done. After receipt by Debtor of any payment the notice from Secured Party referred to in the proviso to the proceeding sentence, (A) all amounts and proceeds (including instruments) received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all Debtor in respect of the Accounts.
(d) DebtorAccounts shall be received in trust for the benefit of Secured Party hereunder, at Lender’s request, shall, shall be segregated from other funds of Debtor and Lender, at Lender’s option may, give notice in form acceptable shall be forthwith paid over to Lender, to the Account Debtors: (i) of Debtor’s grant of a security interest in the Accounts to Lender; and (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender in Lender’s good faith business judgment determines to be necessary or appropriate. GENERAL SECURITY AGREEMENT
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts Secured Party in the same form as so received (with any necessary endorsement) to be held as cash collateral and either ((i)) released to Debtor so long as no "Event of Default" (as hereinafter defined) shall have occurred and be continuing or ((ii)) if any Event of Default shall have occurred and be continuing, applied as provided herein and (B) Debtor shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any account debtor or obligor thereof, or allow any credit or discount thereon;
(iii) In any suit, Proceeding or action brought by Secured Party under any Account comprising part of the Collateral, Debtor will save, indemnify and keep Secured Party, harmless from and against all expenses, loss or damage suffered by reason of any defense, setoff, counterclaim, recoupment or reduction of liability whatsoever of the obligor thereunder, arising out of a breach by Debtor of any obligation or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such obligor or its successors from Debtor, each and all such obligations of which Debtor shall be properly endorsed by and shall remain enforceable against and only against Debtor and shall not be enforceable against Secured Party;
(iv) At Secured Party's request in the event that Debtor has Accounts with respect to Lenderwhich the account debtor is the United States of America or any department, agency or instrumentality thereof (all such Accounts being hereinafter referred to as "Government Receivables"), Debtor shall, with recourserespect to such Government Receivables, promptly comply with the Assignment of Claims Act of 1940, as amended (31 U.S. C. 3727 et seq.) and any other statute or regulation governing the collection of such Government Receivables, and shall promptly deliver to Secured Party evidence of such compliance, which evidence shall be in form and substance satisfactory to Secured Party in its sole discretion;
(fv) Lender Debtor shall have keep and maintain at Debtor's own cost and expense satisfactory and complete records of Debtor's Collateral in a manner consistent with reasonable and appropriate business practices, including, without limitation, a record of all payments received and all credits granted with respect to such Collateral. Debtor shall, for the right Secured Party's further security, deliver and turn over to settleSecured Party or Secured Party's designated representatives at any time following the occurrence of an Event of Default and upon five (5) days' notice from Secured Party or Secured Party's designated representative, accept reduced amountsany such books and records (including, adjust disputes without limitation, the file cabinets in which paper records are stored and claims directly withany and all computer tapes, programs and source codes relating to such Collateral in which Debtor has an interest or any part or parts thereof);
(vi) Debtor will not create, permit or suffer to exist, and give releases will defend the Collateral against, and take such other action as is necessary to remove, any lien on behalf such Collateral, and will defend the right, title and interest of Debtor Secured Party in and to Account DebtorsDebtor's rights to such Collateral, upon such terms as Lenderincluding, in Lender’s good faith business judgmentwithout limitation, determines to be appropriate.the proceeds and products thereof, against the claims and demands of all persons or entities whatsoever;
(gvii) Except as otherwise provided by Debtor will not, without Secured Party's prior written consent, except in the UCC ordinary course of business and except for amounts which are not material in the aggregate, (A) grant any extension of the time of payment of any of the following arising from Lender’s Collateral or any Lender’s gross negligence compromise, compound or willful misconduct, Lender shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: (i) any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling settle any Account for less than the full amount hereofthereof; (ivB) release, wholly or partly, any failure or delay by Lender in enforcing or collecting any person liable for the payment under any Accountthereof; or (vC) allow any credit or discount whatsoever thereon other than trade discounts granted in the performance ordinary course of business; and
(viii) ebtor will advise Secured Party promptly, in reasonable detail , of (A) any material 11/1/95 7 lien, security interest or observance of any claim made by or all of Debtor’s duties, obligations, representations, or the warranties under any other agreement or document relating to asserted against any or all of the Collateral, including the Accounts.
and (hB) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence of any other event which would have a material adverse effect on the aggregate value of such Collateral or on the security interest and during the continuance of an Event of Default, Debtor: (i) shall immediately pay liens with respect to such Collateral created hereunder or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and under any other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to LenderSecurity Document.
Appears in 1 contract
Accounts. With respect to the Accounts, and without limiting Lender’s rights above:
(a) Lender may direct On or before the date of the first Loan, the Borrower shall establish at the Custodian (i) a securities account (the “Collateral Account”) to which all Portfolio Assets will be credited, (ii) a securities account (the “Collection Account”) into which all proceeds received in connection with the Portfolio Assets (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof) will be deposited, (iii) a securities account, which shall be a subaccount of the Collection Account, into which all interest proceeds from the Portfolio Assets and other Interest Collections will be deposited (the “Interest Collection Account”), (iv) a securities account, which shall be a subaccount of the Collection Account, into which all principal proceeds received in connection with the Portfolio Assets (including any repayments or prepayments of principal and amounts received in connection with any sale, termination or other dispositions thereof up to the outstanding principal amount thereof) and other Principal Collections will be deposited (the “Principal Collection Account”), (v) a securities account (the “Trust Account”) into which all cash received by the Borrower from the issuance of Preference Shares, all Loan proceeds and any amounts transferred from the Principal Collection Account Debtors (with the consent of the Lender) or will be deposited, (vi) a securities account (the “Prepayment Reserve Account”) into which funds received by the Borrower in connection with any sale or disposition of a Portfolio Asset shall be deposited to make payment directly the extent the Borrower elects to Lender or deposit such funds in accordance with Section 2(h)(ii)(A), (vii) a securities account (the “Delayed Drawdown Reserve Account”) into which funds related to Delayed Drawdown Collateral Obligations will be deposited pursuant to Section 2(m) and (viii) a specified agent of Lendersecurities account (the “OC Ratio Posting Account”) into which funds related to OC Ratio Posting Payments shall be deposited pursuant to Section 6. The Accounts shall be maintained in accordance with the Account Control Agreement.
(b) Lender may demand, collect, receive and give receipts for any and all money and other property due The only permitted withdrawal from or application of assets credited to become due the Collateral Account shall be to deliver such assets in connection with a sale, termination, repayment or other disposition of such asset against payment or exchange. Any cash payment received in connection with any such disposition shall be deposited into the AccountsCollection Account or paid to the Administrative Agent on behalf of the Lenders as provided herein, and any non-cash asset received in Lender’s or Debtor’s nameexchange shall be credited to the Collateral Account promptly.
(c) Lender may file The Borrower (or the Collateral Manager on behalf of the Borrower) shall instruct each obligor under the Portfolio Assets (or, with respect to any claim Agented Asset, the paying agent) to deliver all proceeds in respect of the Borrower Collateral to the Collection Account. The Borrower shall (or shall cause the Collateral Manager to), on a daily basis (on each Business Day), identify collections received in the Collection Account on the second prior Business Day in connection with the Portfolio Assets as either Principal Collections or Interest Collections and take any other action notify in writing to the Custodian of such determination. The Borrower (or the Collateral Manager on behalf of the Borrower) shall cause all Principal Collections received on behalf of the Portfolio Assets in the Collection Account to be promptly (but in any court event no later than one Business Day following receipt thereof) transferred by the Custodian to the Principal Collection Account. The Borrower (or the Collateral Manager on behalf of law or equity which Lender determines the Borrower) shall cause all Interest Collections received on behalf of the Portfolio Assets in the Collection Account to be appropriate promptly (but in any event no later than one Business Day following receipt thereof) transferred by the Custodian to the Interest Collection Account. The only permitted withdrawal from or application of funds on deposit in the Collection Account, Principal Collection Account or Interest Collection Account shall be to make payments expressly provided for in this Agreement or to transfer funds to the Trust Account in connection with a Reinvestment pursuant to Section 5(d). Without limiting the foregoing, (x) if the Termination Obligations have been paid in full, on the final Payment Date, the Borrower shall, in accordance with the priority of payments set forth in Section 2(l), apply amounts in the Interest Collection Account (and to the extent such amounts are insufficient, amounts in the Principal Collection Account) for the purpose of collecting any or all payment of the AccountsSubordinated Management Fee to the Collateral Manager; provided, however, that Lender however if such amounts are insufficient no further payment shall not be obligated in any manner to make any demand or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any or all made of the AccountsSubordinated Management Fee after the final Payment Date and (y) the Borrower shall apply amounts available in the Interest Collection Account and the Principal Collection Account on each Payment Date pursuant to Section 2(l).
(d) Debtor, at Lender’s request, shall, and Lender, at Lender’s option may, give notice The only permitted withdrawals from or application of funds on deposit in form acceptable the Trust Account shall be to Lender, to the Account Debtors: either (i) of Debtor’s grant of a security interest make prepayments on outstanding Loans in the Accounts to Lender; and accordance with Section 2(h) or other payments expressly provided for in this Agreement, (ii) of such additional information and instructions concerning Lender’s rights under this Security Agreement as Lender purchase Assets or (iii) deposit funds in Lender’s good faith business judgment determines the Delayed Drawdown Reserve Account pursuant to be necessary or appropriate. GENERAL SECURITY AGREEMENTSection 2(m).
(e) Debtor shall, promptly following Lender’s request, deliver to Lender the originals The only permitted withdrawals from or application of all Accounts Receivable Documentation together with the originals of all instruments, chattel paper, security agreements, guaranties, and other documents and property evidencing or securing the Accounts funds on deposit in the same form as received by Debtor, each of which Prepayment Reserve Account shall be properly endorsed by Debtor the Borrower to Lender, with recoursemake mandatory prepayments pursuant to Section 2(h)(ii)(A) at or before the end of the applicable Interest Accrual Period.
(f) Lender The only permitted withdrawals from or application of funds on deposit in the Delayed Drawdown Reserve Account shall have be to either (i) make additional payments with respect to a Delayed Drawdown Collateral Obligation pursuant to Section 2(m) or (ii) deposit in the right Principal Collection Account pursuant to settleSection 2(m) as a result of a sale of a Delayed Drawdown Collateral Obligation, accept reduced amounts, adjust disputes and claims directly with, and give releases on behalf or an irrevocable reduction of Debtor the Borrower's additional payment obligations under a Delayed Drawdown Collateral Obligation pursuant to Account Debtors, upon such terms as Lender, in Lender’s good faith business judgment, determines to be appropriatethe related Underlying Instrument.
(g) Except as otherwise provided by The only permitted withdrawals from or application of funds on deposit in the UCC and except for any of the following arising from Lender’s or any Lender’s gross negligence or willful misconduct, Lender OC Ratio Posting Account shall not be directly or indirectly liable or responsible in any way or under any circumstances to Debtor or any other party for: either (i) any shortage to deposit such funds in the Trust Account upon an Event of Default or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to an Account; (ii) any act, omission, error or delay of any kind by Lender in settling, failing to settle, collecting, or failing make a payment to collect any Account, including any act or omission which results in the loss or impairment of the Debtor’s Account, including any act or omission which results in the loss or impairment of the Debtor’s rights against any third person; (iii) settling any Account for less than the full amount hereof; (iv) any failure or delay by Lender in enforcing or collecting any payment under any Account; or (v) the performance or observance of any or all of Debtor’s duties, obligations, representations, Preferred Investor or the warranties under any other agreement or document relating to any or all of the CollateralCollateral Manager, including the Accountsas applicable, in accordance with Section 6(b) hereof.
(h) If for any reason Debtor receives any payment in connection with any of the Accounts following the occurrence and during the continuance of an Event of Default, Debtor: (i) shall immediately pay or deliver such payment to Lender in the original form in which received by Debtor; (ii) shall endorse to Lender, with recourse, all checks, drafts, money orders, notes, and other instruments or documents representing such payment; (iii) shall not commingle such payment with any of Debtor’s other funds or property; and (iv) shall hold such payment separate and apart from Debtor’s other funds and property in an express trust for Lender until paid or delivered to Lender.
Appears in 1 contract
Sources: Credit Agreement (JMP Group LLC)